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Crawford-Bey v. New York & Presbyterian Hospital

May 27, 2010

VERA CRAWFORD-BEY, PLAINTIFF,
v.
NEW YORK & PRESBYTERIAN HOSPITAL, DEFENDANT.



The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge

MEMORANDUM and ORDER

INTRODUCTION

The plaintiff, proceeding pro se, moves for: (1) a protective order, pursuant to Fed. R. Civ. P. 26(c), shielding her from responding to the defendant's latest request for information and documents; (2) a protective order, pursuant to Fed. R. Civ. P. 30(d), prohibiting the resumption of her deposition by the defendant; and (3) an order compelling the defendant to respond to her interrogatories or "written deposition[s]."*fn1

The defendant cross-moves, pursuant to Fed. R. Civ. P. 37, for an order compelling the plaintiff to: (1) respond fully to its interrogatories and document demands by, inter alia, identifying all individuals who have been assisting her in this action; and (2) testify at a continued deposition, after responding fully to the interrogatories and document demands. The defendant also seeks an order notifying the plaintiff that her failure to comply with the Court's discovery orders will result in her preclusion from using any non-disclosed evidence in this action. Alternatively, the defendant cross-moves for an order: (1) dismissing the plaintiff's complaint, for failure to comply with court orders; and (2) awarding costs it incurred in making its cross-motion and opposing the plaintiff's motion.

BACKGROUND

The plaintiff commenced the instant employment discrimination action on June 17, 2008. On November 7, 2008, the defendant served the plaintiff with its first sets of interrogatories and document requests and sought her authorization for release of her medical records. The plaintiff refused to respond to the defendant's interrogatories and document requests until it replied to her three sets of interrogatories, dated October 20, 2008. The plaintiff served her Fed. R. Civ. P. 26(a)(1) initial disclosure on the defendant in mid-November 2009, beyond the deadline set by the assigned district judge. Her disclosure provided the names of two witnesses, while alluding to the existence of "eight more witnesses," whose names and addresses were "not yet available" to the plaintiff. The plaintiff advised the defendant that the names of the additional eight witnesses "and the content of their testimony [would] be provided as soon as available[.]"

In a February 10, 2009 order, affirmed in its entirety by the assigned district judge after the plaintiff filed objections, the Court directed the plaintiff to: (1) supplement her responses to the defendant's discovery demands, by complying fully with Fed. R. Civ. P. 26(a)(1); and (2) attend the deposition scheduled for her by the defendant. The Court determined further that the plaintiff's interrogatories exceeded the scope of questions permitted by Local Civil Rule 33.3 of this court. The Court advised the plaintiff she was "free to prepare and serve new interrogatories on the defendant that conform to the requirements of" Local Civil Rule 33.3.

Thereafter, the plaintiff objected to all the defendant's document requests and nearly all of its interrogatories, failed to execute the authorization forms releasing her medical records to the defendant, and refused to appear for her deposition. The plaintiff also continued to pursue, from the defendant, answers to her three sets of interrogatories, which the Court ruled previously were improper.

In a July 24, 2009 order, affirmed in its entirety by the assigned district judge after the plaintiff filed objections, the Court directed the plaintiff to: (1) provide the defendant, by August 7, 2009, fully executed authorization forms releasing her medical records; (2) respond, appropriately and without objection, by August 14, 2009, to the defendant's interrogatories and document demands; (3) pay $200, by August 14, 2009, to the Clerk of Court, for failing to obey court orders and meet discovery obligations; and (4) submit, by August 21, 2009, to a deposition by the defendant. The Court found the plaintiff's disregard of court orders to be "willful and indicative of bad faith" and warned her that failing to comply with the July 24, 2009 order would result in the issuance of a report and recommendation, to the assigned district judge, that her case be dismissed.

On August 12, 2009, the defendant received the plaintiff's partially executed authorization forms for release of her medical records.*fn2 On August 18, 2009, the defendant received the plaintiff's answers to its interrogatories. However, the plaintiff failed to provide the name of a single witness. In response to 15 of the defendant's 21 interrogatories, the plaintiff stated she could not answer the question posed, because she was "under extreme stress and [could not] recall or concentrate[.]" Her remaining answers -- for instance, that she did not know which witnesses she would call, "at this early stage" in the action, or that she would provide the defendant with contact information for unnamed persons in her complaint "in due time before the jury trial" -- were evasive.

On August 20, 2009, the Clerk of Court for this judicial district received the plaintiff's payment of $200. On the same date, the plaintiff appeared for her deposition by the defendant; it lasted approximately seven hours. However, the plaintiff failed to produce all documents, in her custody or control, that responded to the defendant's document demands.*fn3 Although the plaintiff claimed to have "a lot of documents" to substantiate her claims, those materials were in a storage facility, owing to the plaintiff's alleged move, from New York, to South Carolina, in 2006. At her deposition, the plaintiff agreed to provide the defendant, at a later date, with, inter alia, the names and contact information for witnesses and individuals helping her with her case and her personal notes, allegedly documenting the nature and dates of discriminatory actions taken against her. The plaintiff also agreed to continue her deposition, at a later date, after producing all responsive documents.

On September 23, 2009, the defendant mailed, to the plaintiff, an original copy of her deposition transcript. Along with the transcript, the defendant provided the plaintiff with a list, titled Schedule A, of outstanding discovery requests ("Schedule A list"). See, Docket Entry No. 45, Affirmation of Kevin R. Brady, Ex. K. During a September 29, 2009 telephonic conference with the Court, the plaintiff objected to the additional information sought by the defendant. Thereafter, the plaintiff filed her motion for a protective order.

DISCUSSION

1. Protective ...


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