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Warren v. City of New York


May 19, 2010


The opinion of the court was delivered by: Ramon E. Reyes, Jr., M.J.


Before the Court is defendants' timely motion for reconsideration of a prior discovery order permitting the audiotaping of defendants' psychological expert examinations of plaintiffs. (Docket Entry dated April 27, 2010 (order) and Docket No. 85 (motion)). For the reasons which follow, the motion for reconsideration is denied.

First, I will address defendants' counsel's contention that because the prior ruling "is limited to a brief docket entry, it appears that the Court may not have fully considered these issues in rendering its ruling." (Docket No. 85 at n. 2.) Quite conveniently, counsel that the same "brief docket entry" contains a ruling on a discovery dispute that was favorable to defendants. Notwithstanding the brevity of that ruling, I am sure counsel would not agree that the Court failed to give adequate consideration to the plaintiffs' arguments on that issue. In any event, this Court and others routinely rule on discovery motions either from the bench or in "brief docket entries." There is nothing improper in so doing, nor does such a practice indicate the lack of adequate consideration of the issues and arguments presented. Furman v. United States, 720 F.2d 263, 265 (2d Cir. 1983) ("The fact that a disposition is by informal or summary order rather than by formal published opinion in no way indicates that less than adequate consideration has been given").

Similarly, the failure to specifically discuss each of the cases cited in defendants' initial opposition does not mean that the Court failed to consider those decisions. Counsel's characterization of the "relevant case law" cited in defendants' initial opposition as "extensive" is over blown, and misses the point. None of those decisions is "controlling," as they are all district court decisions from other districts. Nevertheless, those decisions were read and considered, but in the exercise of its discretion the Court did not conclude that they commanded a different result. In this regard, counsel's reliance on Shrader v. CSX Transp., 70 F.3d 255 (2d Cir. 1995) is misplaced. As plaintiffs correctly note, the Court in Shrader held that the district court properly granted reconsideration where the movant cited "additional relevant case law and substantial legislative history" that was not previously cited. Id. at 257 (emphasis added). Critically, the Court noted that "[a]dmittedly, a motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided," but that a court does not abuse its discretion to grant such a motion where additional case law or data is put before it. Id. Thus, Shrader does not stand for the proposition asserted by defendants' counsel -- the failure to specifically address each and every case previously cited is an adequate ground upon which to base a motion for reconsideration.

Second, and more importantly, the motion lacks merit. In seeking reconsideration defendants argue that "the effect of the Court's ruling on this issue is to preclude defendants from utilizing the expert of their choosing." (Docket No. 85, at 2). Defendants argue that due to Dr. Kleinman's "great concern about the media attention to this matter" he has advised defendants that "he will not continue to work on this matter unless [defendants] are able to secure legal protections that he deems necessary and appropriate for the recordings." (Id.) Quite simply, this is a new argument that was not raised previously, and the Court declines the accept it as a basis for reconsideration. Defendants have known for some time that Dr. Kleinman would be their expert psychologist. There was nothing preventing defendants from previously ascertaining whether Dr. Kleinman was willing to continue serving as their expert in the event audiotaping was permitted. That counsel failed to check with Dr. Kleinman is not a ground to grant reconsideration.

Finally, the Court denies defendants' request for an extension of discovery to retain a new psychological expert in the event the motion to reconsider is denied. Counsel argues that in the absence of additional safeguards against the inappropriate disclosure of the audiotape (or the transcript thereof), Dr. Kleinman will refuse to serve as defendants' expert. Dr. Kleinman is free to do as he pleases, but the Court will not extend the period for expert discovery any further. The Court will note that counsel and Dr. Kleinman ignore that appropriate safeguards are already in place. Defendants can simply designate the audiotape and transcript as "confidential materials" pursuant to the terms of the existing protective order. (Docket No. 44). Disclosure of audiotape or transcript, or the contents thereof, would then be prohibited absent further order from the Court. No other safeguards need to be implemented.

Ramon E. Reyes, Jr. United States Magistrate Judge


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