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Bender v. Valle

November 14, 2008

SHERRY E. BENDER, PLAINTIFF,
v.
ARIEL DEL VALLE, ET AL., DEFENDANTS.



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

OPINION & ORDER

I. INTRODUCTION

On July 15, 2005, pro se Plaintiff, Sherry Bender, filed this action alleging numerous civil rights violations during an altercation with authorities at an office of the Social Security Administration ("SSA"), which ended in Bender's arrest. Pending before the Court is Bender's motion to compel Defendants to produce documents and fully respond to interrogatories under Federal Rule of Civil Procedure 37(a). (Pl. Mot. to Compel, ("Pl. Mot.") at 3.) For the forthcoming reasons, Bender's motion is DENIED, in part, and GRANTED, in part. Moreover, for his untimely disclosure of witnesses and his incorrect statements in relation to this disclosure, Glenn H. Egor, counsel for Ariel Del Valle, SHALL pay $1000 in sanctions to the treasury of the Court.

II. BACKGROUND

In an Order dated June 25, 2007, the Court summarized the discovery history in this case as follows:

On October 12, 2006, this Court ordered that the deadline for filing all remaining requests for discovery would be October 27, 2006. On December 5, 2006, the Court ordered that there be no new discovery filings because of the numerous discovery extensions that have been granted in the case. In her December 13, 2006 letter, Bender stated that she had believed she would have until thirty days prior to the end of discovery to file new discovery requests, and asked that the deadline for new discovery filings be extended until December 31, 2006. Taking the plaintiff's pro se status into consideration, the Court extended the deadline for filing all discovery requests in this case to January 2, 2007. This order was issued on December 22, 2006. Because of the parties' difficulties in complying with discovery, the Court gave the parties until May 31, 2007 to finish discovery. All discovery was to be completed by this date, unless specifically approved by the Court. (Order dated June 25, 2007 at 3 (the "June 25 Order").) There were no further extensions to the deadline for filing new discovery requests. The Court ruled that Plaintiff's deadline for filing any motion to compel discovery regarding the discovery requests made before January 2, 2007, was January 22, 2007. (Order dated January 10, 2007).

Bender served a number of interrogatories on the Defendants in 2006, before the January 2, 2007, deadline for filing discovery requests. (Pl. Mot. at 1-2.) As a result of what Bender perceived to be incomplete answers to her earlier interrogatories, she sent multiple letters reiterating her unmet requests to counsel for each Defendant in May 2007 (the "May 2007 Letters"). (Id. at 2.) The Parties disputed the timeliness of the discovery requests in the May 2007 Letters. Defendants asserted that the requests were new requests, while Bender claimed they were the same as earlier, timely discovery requests, but more clearly articulated. (June 25 Order at 7.) In reference to Bender's requests in the May 2007 Letters, the Court noted that "[r]egardless of how the requests are characterized, the deadline for filing discovery requests was January 2 [, 2007]." (Id.)

On October 5, 2007, this Court issued an Order granting Bender leave to file a motion to compel discovery. Bender then filed the present motion, requesting "an Order compelling all defendants to produce all documents requested, and respond fully to all interrogatories, as specifically articulated in Plaintiff's letters of May 16, 2007, May 17, 2007, and May 24, 2007." (Pl. Mot. at 3.) Bender asserts that all of the documents and information requested in the May 2007 letters are "directly pertinent . . . for the determination of facts related to this case." (Id.) She claims that "most of . . . defendants responses to interrogatories have been resisted, denied, incomplete, [or] evasive," and that the Defendants have only "partially" responded to her requests for information and documents. (Id. at 2-3.)

In opposing Bender's motion, Defendants argue that it should be denied for failure to identify any particular discovery disputes, and because it is untimely and duplicative of prior motions. (Ariel Del Valle and HWA, Inc. Opposition to Plaintiff's Motion to Compel Discovery at 1; Bivens Defendants' 11/5/07 Letter to Court; The City of New York Law Department's 11/29/07 Letter to Court.) In her Reply, Bender argues that her motion is timely because this Court granted her leave to file it in an Order dated October 23, 2007. (Plaintiff's Reply in Support of Motion to Compel Discovery at 1). She also identifies specific discovery disputes in her Reply. (Id. at 1-8.)

One of the specific disputes Bender raises in her Reply pertains to the identities of non-party witnesses to the events at the SSA office that gave rise to Bender's underlying civil rights claims. Bender notes that the "witnesses in question were the two individuals, seen on the Federal videotapes to be seated approximately ten feet away from the plaintiff during her entire visit to the Social Security Administration office on that day." (Id. at 2.) Bender served a first set of interrogatories seeking this information from HWA, Inc. on November 11, 2006. Specifically, the first interrogatory requests that Defendant

Identify the name and addresses of all persons in the SSA office between 10:50 and noon on July 17, 2002. Specify all persons inside the administrative area, noting the time of their arrival (using the assistance of the federal video cameras).

1(a). Specifically identify the two persons, shown in the federal videotapes seated approximately ten feet away from the Plaintiff (diagonally behind AYBAR'S desk), during plaintiff's entire time within the administrative area of the SSA [precisely 11:00:00 a.m. through 11:19:50 a.m.] and provide all disclosures required pursuant to Federal Rule 26. (Plaintiff's First Set of Interrogatories and Request for Production of Documents and Things from Defendant HWA, Inc. at 3.) Bender notes that her interrogatory "specifically pointed to the location of [the] two individuals" in question, and that Defendant Del Valle's*fn1 response to her interrogatory request was that those persons were hearing impaired. Bender continues,

Subsequently Del Valle's attorney stated that the names of those individuals had been disclosed, but they were not. Attorneys for Del Valle point to their letter dated April 6, 2007, referencing witnesses identified by Del Valle seated approximately ten feet away from the plaintiff on July 17, 2002 to be three women, yet this is clearly contradicted by the Federal videotapes, which show two thin, young, white males, in accordance with all of plaintiff's testimony. (Plaintiff's Reply in Support of Plaintiff's Motion to Compel Discovery at 2-3.)

The Court takes particular note of this issue, as the dispute regarding the identification of these witnesses was the subject of two orders of this Court, as well as the subject of a motion by Bender for sanctions against counsel for Defendants Del Valle and HWA, Inc. (Orders, dated March 2, 2007, and April 10, 2007; Letter from Sherry Bender to Court, dated March 30, 2007.) At a conference before the Court in March 2007, Bender stated that when she asked Glenn H. Egor, counsel for Defendants Del Valle and HWA, Inc., to identify the two witnesses visible on the federal videotape of the incident, Egor told her that he had already given her the names of the witnesses in question. (March 1, 2007 Conference Transcript at 40-41.) Bender contended that Egor had not, in fact, disclosed the identities of these witnesses to her. (Id.) When the Court asked Egor if he had disclosed these witnesses to Bender, Egor replied, "Judge, it's my understanding that we did make that disclosure for the reasons you set forth, that they would benefit our defense at trial." (Id. at 41.) The Court subsequently ordered Egor to provide to the Court by March 9, 2007, documentation of when and how Defendants' potential witnesses had been disclosed to Bender. (Order dated March 2, 2007.) On March 6, Egor copied the Court on a letter he sent to Bender in which he provided notice of "additional witnesses." (Letter from Glenn H. Egor to Sherry Bender dated March 6, 2007.) This letter contained the names and contact information of thirteen physicians and three female SSA employees. (Id.) Egor did ...


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