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T.Z. v. City of New York

February 25, 2008


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff C.G., an infant under the age of fourteen years at the time of the events giving rise to this lawsuit, through her guardian T.Z.,*fn1 commenced this action on November 1, 2005 against defendants City of New York ("City"), the New York City Department of Education ("Education Department"), Frank DiFranco ("DiFranco"), and Robert Raskin ("Raskin"), in connection with an alleged sexual assault of C.G. by two fellow students in a classroom while defendant Raskin was present. Plaintiff alleges violations under 42 U.S.C. §§ 1981, 1983, and 1985; 20 U.S.C. § 1681; as well as state law claims of negligence and infliction of emotional distress.*fn2 Plaintiff seeks compensatory and punitive damages, in addition to attorneys' fees. Now before the Court are plaintiff's (1) appeal of the Magistrate Judge Azrack's September 24, 2007 order, which limited the scope of plaintiff's deposition questions to incidents occurring in classrooms five years prior to plaintiff's alleged assault and did not compel defense counsel to refrain from modifying deposition questions by plaintiff's counsel and/or directing witnesses not to answer questions concerning non-privileged matters;*fn3 and (2) plaintiff's motion for sanctions against defense counsel.*fn4 For the reasons set forth below, plaintiff's appeal and motion are denied.


To the extent discussed in this Court's prior opinion, familiarity with the facts is assumed. See T.Z. v. City of New York, No. CV 05-5111, 2007 WL 2077730 (E.D.N.Y. 2007). The recent procedural history offered below draws from the record of the proceedings before the Magistrate Judge and the submissions of the parties in connection with this appeal. Disputes are noted.

Procedural History

During the course of discovery, the parties had a dispute as to the scope of the documents that defendants would have to produce concerning prior incidents of student-on-student violence. Judge Azrack addressed this issue on February 21, 2007 by proposing that the defendants produce reports of incidents which occurred for the period commencing five years prior to the date of the incident in question. Judge Azrack also proposed to limit the scope of disclosure to incidents which occurred inside classrooms.

Because all parties objected to this solution, Judge Azrack ordered the parties to brief the issue. Plaintiff then moved for an order requiring defendants to produce "reports of student-on-student violence regardless of whether it occurred in a classroom." Plaintiff's Affirmation in Support of Objections to Magistrate Judge's Orders ["Pl. Aff."], ¶ 4. The City cross-moved for a protective order for document production pursuant to Fed. R. Civ. Pro. 26(c) "providing that production of 'prior incident' discovery be limited to incidents of sexual misconduct" involving the plaintiff or her two assailants. Id.

On April 9, 2007, Judge Azrack ordered that: "[p]laintiff's application [requesting documents concerning all incidents of student-on-student violence anywhere on school grounds] is granted to the following extent only: Defendants are to disclose any incidents of student on student violence in classrooms at JHS 278 for a 5 year period prior to November 9, 2004."

Magistrate Judge's Ruling, April 9, 2007. Neither plaintiff nor defendants appealed the order.

Plaintiff deposed six witnesses from September 5, 2007 to September 26, 2007. During each of the depositions plaintiff and defense counsel disagreed about the application of the April 9, 2007 discovery order. Defense counsel objected to plaintiff's questions to the extent that the "magistrate judge's discovery orders have limited in scope discovery matters relating to prior incidents," Pl. Aff. ¶ 13, while plaintiff's counsel maintained that defense counsel could only object on the record and then have the witness answer the question (with a judge to rule on the objection later) or direct the witness not to answer the question. Id. at ¶¶ 13-15. Plaintiff further argued that defense counsel could not change the questions posed to the witnesses. Id.

On September 18, 2007, plaintiff's counsel requested an adjournment of the September 20, 2007 compliance conference to a later date because of the unavailability of the deposition transcripts. Defendants opposed this adjournment on the grounds that they had issues to raise with the court which required resolution prior to the remaining depositions. One of these issues included seeking a protective order pursuant to Fed. R. Civ. Pro. 26(c) defining the scope of discovery for the remaining depositions so as to comply with the April 9, 2007 discovery order.*fn5 Defendants' Opposition Letter, September 18, 2007. On September 19, Judge Azrack denied defendants' application for an immediate conference and instructed the parties to contact chambers if issues arose during the remaining depositions. Magistrate Judge's Ruling, September 19, 2007.

On September 24, 2007, during the deposition of Detective Albino, the parties again disagreed about the application of the April 9, 2007 discovery order. Plaintiff's counsel called the Magistrate Judge. During the conference call, plaintiff raised three issues: (1) whether the scope of plaintiff's questioning during the depositions was limited by the April 9, 2007 discovery order; (2) whether the Magistrate Judge would instruct defense counsel to refrain from rephrasing questions for the witnesses during depositions; and (3) whether defendant was required to submit unredacted versions of the student files sought by plaintiff. Transcript of September 24, 2007 Conference Call ["Sept. 24 Tr."], Plaintiff's Exhibit L. Judge Azrack determined that plaintiff's counsel would be limited to asking questions about student-on-student violence in the classrooms for the five year period prior to the November 9, 2004 incident. She also instructed defendants' counsel to limit themselves to stating their objections for the record during depositions and to submit the redacted versions of the disputed files for her review. Minute Entry Proceedings, September 24, 2007. Ten days later, plaintiff filed the instant appeal.


Non-dispositive motions decided by a magistrate judge are to be modified or set aside by the district judge assigned to the case only where the order is clearly ...

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