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Banushi v. City of New York

August 25, 2009


The opinion of the court was delivered by: James Orenstein, Magistrate Judge


In a letter-motion dated August 6, 2009, the defendants in this civil rights action under 42 U.S.C. § 1983 have asked me to reconsider an order dated August 3, 2009, Docket Entry ("DE") 22, requiring them to reimburse the plaintiff's costs arising from a discovery dispute. DE 24 (the "Motion"). Because the Motion fails to satisfy the requirements for such relief, and because in any event I adhere to the view that the underlying ruling was appropriate, I now deny the motion.

I. Background

I assume the reader's familiarity with the allegations set forth in the Amended Complaint.

See DE 11. Briefly stated, plaintiff Robert Banushi ("Banushi") claims that the defendants violated his civil rights when police officers, acting without probable cause, arrested him at a subway station in the early morning hours of December 14, 2007, and charged him with making unauthorized use of a discount subway fare card. See id. ¶¶ 1-2.

I held an initial planning conference on October 8, 2008, and set a schedule contemplating the completion of all discovery by June 15, 2009. See DE 8 (minute entry); DE 9 (case management and scheduling order).*fn1 I later granted the parties' joint request to extend the discovery deadline by 15 days, to June 30, 2009. See DE 16 (motion); Order dated May 20, 2009 (order). On the day before that extended deadline, I held an interim pretrial conference at which Banushi's counsel complained that the defendants had "failed to produce a video recording of relevant events at the police station where the plaintiff was taken following his arrest"[.]" DE 17 (minute entry). The defendants' counsel said nothing at the conference to dispel the assumption that any such video recording existed, but instead argued that the defendants had no obligation to produce it.

Banushi filed a motion to compel the defendants to produce the video recording the next day. DE 18. The defendants submitted a timely response on July 2, 2009, in which they objected to the motion on the merits but again did nothing to dispel the assumption that the recording at issue existed. See DE 19. After reading the papers, I entered the following brief order:

The defendants' suggestion that the video recording at issue need not be produced because the discovery request upon which the plaintiff relies was not sufficiently specific is unpersuasive; a video recording of the plaintiff's interactions with the police processing his arrest at the precinct is plainly responsive to the plaintiff's request. Moreover, to the extent the defendants resist production on the ground that any statement made at the precinct "has absolutely no bearing on the issue of whether probable cause existed at the time of the arrest[,]" docket entry 19 at 2, their argument is patently wrong. As the defendants' counsel assuredly knows, a party is entitled to discovery of non-privileged information that is "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). A request for a recording of statements made at the police precinct while processing the plaintiff in the aftermath of his arrest unquestionably satisfies that liberal standard. I therefore grant the plaintiff's motion and direct the defendants to produce the video recording at issue no later than July 6, 2009. Order dated July 2, 2009.

On July 14, 2009, Banushi filed a motion asking the court to stay all further proceedings until the defendants complied with my order granting the motion to compel. DE 21. In seeking such relief, Banushi submitted a copy of a letter by which that the defendants had informed him -- on July 6, 2009, the last date for them to comply with my order -- that "no video recordings exist for Transit District 33 station house [sic] on or about December 14, 2007." DE 21-1. Because it was obvious that the relief Banushi requested -- a stay of the lawsuit pending the production of a recording that the defendants now claim never existed -- would lead to an impasse, I gathered the parties for a further conference on August 3, 2009. At that conference, the defendants' counsel explained to my satisfaction why she believed that the video recording at issue did not exist -- but did not explain to my satisfaction why she had not taken the trouble to discover that fact until after Banushi made, and I granted, the motion to compel. I therefore entered the following order:

The defendants will reimburse the plaintiff his reasonable costs, including his attorney's fee, arising from the motion to compel a video recording (docket entry 18 ). The defendants' counsel opposed the motion on the merits rather than making a factual inquiry that would have revealed that the recording at issue had never existed and that the matter was therefore moot. The parties shall promptly confer as to the proper amount of costs to be reimbursed; if they are unable to agree, the plaintiff may make further application to obtain the amount he believes to be warranted.

DE 22 (minute entry).

On August 6, 2009, the defendants filed the instant motion for reconsideration. They argued that Banushi had not sufficiently alerted them to his request for a video recording at the police station prior to the conference on June 29, 2009; that they had a sufficient reason for resisting the request on the merits; and that the circumstances presented here -- in particular, the assertion that "it is simply impossible for defendants' attorney to make an immediate determination as to whether the subject of [a discovery] request exists every time a request is made" (Motion at 4) -- render an award of expenses unjust.*fn2 Motion at 3-5. Banushi filed an opposition to the Motion on August 11, 2009. DE 26.

II. Discussion

The standard for resolving a motion for reconsideration in this district is both ...

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