The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendants' motion to compel (Docket No. 43*fn1 ). Responses to this motion were due by January 6, 2012, with replies due by January 13, 2012, and that motion was deemed submitted as of January 13, 2012 (Docket No. 44). In response to this motion, plaintiffs filed their cross-motion for a Protective Order (Docket No. 45*fn2 ). Although no formal briefing schedule was set for that cross-motion, defendants' reply in support of their motion to compel also responded to plaintiffs' motion for a Protective Order (Docket No. 46). Thus, both motions are deemed submitted as of January 13, 2012, and given their interrelationship will be considered together in this Order.
While this motion was pending, defendants also moved for extension of time to file dispositive motions, without opposition by plaintiffs (Docket No. 47).
This is a civil rights action where plaintiffs allege unreasonable seizure, racial profiling, and infringement on their right to travel by being stopped and seized by Niagara County Sheriff's deputies when plaintiffs were approaching the Lewiston-Queenston Bridge, Lewiston, New York (see Docket No. 1, Compl.). Plaintiffs name the County of Niagara, its Sheriff's Department, and two named employees of that department (Ray Tracy and C.S. Page) as defendants (id. ¶¶ 3-7). Plaintiffs also are suing fifteen John Doe defendants, employees of the Niagara County Sheriff's Department allegedly involved in this incident (id. ¶¶ 8-9).
On April 28, 2009, plaintiffs were driving to Canada when they were stopped by Niagara County Sheriff's deputy Tracy within a half mile of the Lewiston-Queenston Bridge (id. ¶¶ 16-17). During this stop, another deputy brought a police dog to plaintiffs' vehicle to sniff it (id. ¶¶ 22-24). The driver of the vehicle, plaintiff Thaddeus Rougier*fn3 , then exited the vehicle and took out a camera to take pictures of this incident, when a deputy approached Rougier and took his camera (id. ¶¶ 25-26). Another deputy arrived and asked plaintiff Beverly Henry to step out of the vehicle. She asked to retrieve her jacket but was told officers would get it; when they did, they searched the jacket before handing it to her. (Id. ¶¶ 27-28.) Rougier then walked behind the vehicle when he was told by a deputy to not move and then was thrown upon the trunk of the deputy's vehicle with his hands pulled behind him, as if to handcuff him (id. ¶¶ 30-31), but then placed him (uncuffed) into the deputy's vehicle (id. ¶ 32). Henry then joined Rougier in the deputy's vehicle and both were detained (id. ¶ 33). More deputies arrived and then plaintiffs' luggage was removed from the trunk and searched on the side of the road (id. ¶ 37). Plaintiffs' vehicle was taken to the United States-Canadian border where an x-ray truck was used to examine the vehicle, as well as a second physical and canine inspection of the car's contents, not finding any drugs during this search (id. ¶¶ 41-43). Defendants then issued plaintiffs traffic citations*fn4 after detaining them for over three hours (id. ¶ 45), with these citations later dismissed (id. ¶ 53).
Plaintiffs allege that defendants violated plaintiffs' civil rights by unreasonably seizing and detaining them without due process of law (id., First Claim). Plaintiffs claim that defendants applied racial profiling based upon the race (African American) and national origin (Henry was born in Jamaica, Rougier in Grenada) of the plaintiffs (id., Second Claim, ¶¶ 1-2). Finally, they allege that defendants interfered with their right to travel (id., Third Claim).
Niagara County, its Sheriff's Department, Tracy and Page answered (Docket No. 5), and plaintiffs served a Reply to the counterclaim asserted in the Answer (Docket No. 9). Plaintiffs were granted leave to amend their Complaint (Docket No. 34, Order of July 5, 2011; see Docket No. 35 (Amended Compl.), 24 (Motion for leave to amend)). Defendants answered the amended pleading (Docket No. 40). As amended (cf. Docket No. 17), the schedule in this action called for motions to compel discovery to be filed by October 28, 2011, with discovery concluded on November 28, 2011 (Docket No. 34).
On December 21, 2011, defendants moved to compel production of the vehicle at issue in this stop for testing, inspection, and x-raying, and to preserve that vehicle (Docket No. 43). They seek to have the vehicle tested and x-rayed within 20 days of entry of an Order to that effect at the U.S. Customs and Border Protection facility at Lewiston-Queenston Bridge (id., Def. Atty. Aff. ¶ 2). In April 2009 during the stop while searching for contraband and potential hidden compartments, that vehicle was x-rayed at the Lewiston-Queenston Bridge facility and the x-ray revealed "an anomaly in the trunk area" of that vehicle (id. ¶ 9, Ex. B). The trunk was examined and no hidden compartments or contraband was found, save trace amounts of green vegetative matter in the spare tire well (id.)
Plaintiffs claim, however, that the subsequent deposition testimony did not describe the anomaly, the materials confiscated from the vehicle were never tested and were not the basis for an arrest (Docket No. 45, Pls. Atty. Decl. ¶¶ 18-22), and defendants do not now articulate what they hoped to find in a second x-ray of the vehicle (id. ¶¶ 16-17, 22-23). Defendants served a demand that plaintiffs preserve that vehicle, Rougier's 1995 Lexus, and to notify the defense of its current location (Docket No. 43, Def. Atty. Aff. ¶ 10, Ex. C). Plaintiffs, however, merely questioned the legitimacy of the request (id. ¶ 11, Ex. D).
During depositions in this case, defendant Deputy Ray Tracy testified that he was unable to see into the vehicle due to its tinted windows (id. ¶ 12, Ex. E). Defendants insisted upon production of that vehicle to counter plaintiffs' allegations that their traffic stop was pretextual due to their race (id. ¶ 13). If plaintiffs refused to produce the vehicle, defendants then would insist upon an inspection (id. ¶ 14, Exs. F, G). Plaintiffs' counsel delayed in responding to whether the vehicle would be inspected or not (id. ¶¶ 15-17), defense counsel later learning that the inspection scheduled for November 28, 2011 (also the discovery cut off date), would go forward, but in New York, New York (id. ¶¶ 17, 18). The notice for inspection called for the vehicle to be inspected at plaintiffs' counsel's offices in Amherst, New York (id., Ex. G*fn5 ).
Plaintiffs insist that defendants inspect the vehicle in New York City, where it presently is located (id. ¶ 17, Ex. H; see Docket No. 43, Defs. Memo. at 1). While willing to have it inspected soon after the November 28 date, plaintiffs' counsel insists that plaintiffs were not obliged to preserve the vehicle (Docket No. 43, Defs. Atty. Aff. ¶ 19, Ex. J; see id., Ex. H (offering to furnish the vehicle for inspection "in New York" but not promising to retain it)). Defense counsel responded that since plaintiffs venued this action in the Western District of New York, the vehicle must be inspected there (id. ¶ 20). Plaintiffs failed to respond to defendants' subsequent inquires about this matter (id. ¶¶ 21-22), leading to defendants' motion to compel.
Defendants contend that an inspection (including x-ray) of the vehicle is material and necessary to the defense of the case (id. ¶¶ 25, 23-24), but plaintiffs dispute the location for this discovery (id. ¶ 26). Plaintiffs note, however, that defendants served an Amended Notice for Discovery which includes (for the first time) a request to x-ray the vehicle (Docket No. 45, Pls. Atty. ...