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Keith Short and Fair Housing Justice Center, Inc v. Manhattan Apartments

October 11, 2012


The opinion of the court was delivered by: Wood, U.S.D.J.:


Plaintiffs, Keith Short and the Fair Housing Justice Center, bring this motion for discovery sanctions and attorneys' fees against Defendant Manhattan Apartments based on its failure to produce discovery materials in violation of three court orders. For the following reasons, the Court GRANTS Plaintiffs' motion and orders Defendant Manhattan Apartments to pay Plaintiffs $23,100.00 in attorneys' fees.


Plaintiffs seek compensatory and punitive damages for alleged unlawful discrimination in housing, against those suffering from AIDS (based on disability and source of income). Plaintiff Keith Short, a 45-year-old disabled man who suffers from AIDS, attempted to rent apartments from various real estate brokers, including Defendant Manhattan Apartments ("MA").*fn1 (Compl. ¶¶ 1-2 [Dkt. 1]). Mr. Short planned to finance his rent with a subsidy from a New York state agency that assists indigent individuals with symptomatic AIDS, the HIV/AIDS Services Administration ("HASA"). (Id. at ¶¶ 21-23). MA allegedly refused to show or rent Mr. Short any apartments based on his disability and source of financing, resulting in several months of homelessness and severe emotional distress. (Id. at ¶¶ 28-29; 37-39).

Mr. Short then contacted the Fair Housing Justice Center ("FJHC"), also a Plaintiff, which sent testers-individuals seeking apartments on their own behalf and on behalf of prospective tenants receiving HASA subsidies-to assess MA's rental practices and tape record their interactions. MA employees allegedly refused to show apartments to FJHC testers using HASA financing, notwithstanding that MA, at the same time, actively tried to rent apartments in the same price range to non-disabled testers. (Id. at ¶¶ 32-36). MA employees referred to a computer database when discussing landlord preferences with the testers. For example, when a tester inquired about an apartment for her son, who was financing his rent with a HASA subsidy, the agent "went on her computer and began typing/searching, informing the tester: 'So far, the landlords that we have here are not, um affiliated with the HASA program.'" (Id. at ¶¶ 32).

On January 3, 2012, Plaintiffs served MA with a document request pursuant to a court-approved discovery schedule. (Merjian Decl. ¶ 2 [Dkt. 64]). Several months later, when deposing MA employees and MA's proprietor (Jerry Weinstein), Plaintiffs learned that MA had failed to produce numerous documents responsive to their initial request, including screenshots of rental listings from the agency's computer database. (Id.) According to Plaintiffs, this database contains standard information, such as apartment location and price, as well as information about landlords' preferences. (Id. ¶ 5). Plaintiffs believe the "landlord requirements" field in the database entries included "directions and directives" from landlords revealing discriminatory practices. (Hearing Tr. 11:19-11:24, July 2, 2012). Up to this point, MA had produced only one heavily redacted printout of one listing, which had blacked out the landlord requirements. (Merjian Decl. ¶¶ 5-6). Based on Mr. Weinstein's statements, Plaintiffs sought screenshots, including the landlord requirements field, for all listings during the one-year period around Mr. Short's meetings with MA (from July 1, 2010 through June 30, 2011). (Id. ¶ 5).

Plaintiff asked MA to turn over the missing documents by letter on May 10. (Merjian Decl. Ex. A, at 4). MA again failed to produce most of the documents requested, and on June 1, Plaintiff requested court assistance to obtain the relevant materials. (Id. at 3). In response, this Court issued a discovery order on June 18 specifically directing MA to produce the documents Plaintiffs requested by June 22. (Id.) MA again failed to meet the deadline, and the Court ordered the parties to appear. At a July 2 conference, MA explained that it had failed to produce the screenshots because Mr. Weinstein "felt.the dissemination in and of itself would cause harm to the business" and that a confidentiality order was insufficient to protect his interests. (Hearing Tr. 14:21-14:25, July 2, 2012). The Court rejected MA's explanation, chastised MA's counsel for failing to bring the issues to the Court's attention prior to the expiration of the discovery order, and encouraged Plaintiffs to bring a motion for fees and costs. (Id. at 15:1-15:25). Finally, the Court ordered MA to produce "all documents requested by plaintiffs" by July 10. (Id. at 15:7-15:12).

On July 9, counsel for MA, David Wims, told Plaintiffs that it could not produce the documents on time, requesting an extension and a confidentiality order. (Merjian Decl. ¶ 14). According to Mr. Wims, MA was in the process of producing hard copies of screenshots of those listings, which was taking longer than expected. (Merjian Decl. Ex. C, at 2). MA requested a protective order from the Court, which was denied on July 18. (Order dated July 18 [Dkt. 59]).

On July 17, MA finally produced something in response to Plaintiffs' requests-but not the screenshots MA had promised. Instead, MA produced a spreadsheet created for the purposes of discovery, reflecting some information from the database but lacking significant relevant information, such as the addresses of listed apartments, landlords' names, and any information regarding apartments with a rent over $1,300 per month. (Hearing Tr. 6:6-6:15, Aug. 2, 2012). The spreadsheet did contain some entries under "landlord requirements," including a requirement than an applicant "MUST BE ESTABLISHED WORKING PERSON," "MUST HAVE GREAT JOB," or must be "ESTABLISHED WORKING PEOPLE." (Merjian Decl. ¶ 30; see also Merjian Decl. Ex. F). Because the spreadsheet was missing information, however, these entries were not associated with specific properties, addresses, or landlords.

The Court scheduled another conference for August 2. On August 1, Mr. Wims submitted a letter confirming that the spreadsheet was not an original document, but rather had been "created by a data export." (Merjian Decl. Ex. E, at 2; see also Hearing Tr. 9:24-9:25, Aug. 2, 2012 ("THE COURT: 'Created by a data export' is about as vague as anyone can be.")). The letter went on to state that "unfortunately Defendant Manhattan is unwilling and/or unable to comply with the Plaintiffs' July 20, 2012 demand for production in its present form." (Merjian Decl. Ex. E, at 2). At the conference, the Court ordered MA-for the third time-to produce the underlying documents Plaintiffs had requested, without redaction, by August 3. (Id. at 8:11-9:13; 10:17-10:20). The Court also reiterated its willingness to impose sanctions for MA's deliberate and repeated violation of discovery orders. (Hearing Tr. 10:22-11:12, Aug. 2, 2012).

MA continues to refuse to turn over the documents. (Merjian Decl. ¶ 26). This conduct violates three separate Court orders: one issued in writing on June 18, and two issued to Mr. Wims in person on July 2 and August 2. Mr. Weinstein was fully aware of all three orders, either from Mr. Wims or from the Court directly. (See Hearing Tr. 13:9-13:15, July 2, 2012; Hearing Tr. 12:19-12:22, Aug. 2, 2012).

In light of MA's repeated failure to comply with this Court's discovery orders, Plaintiffs have moved for discovery sanctions against MA, requesting a factual designation that the documents MA failed to produce contain directives from landlords not to assist tenants receiving public housing subsidies. Plaintiffs have also requested attorneys' fees for their work related to the violation of the discovery orders. *fn2 This case is scheduled for a bench trial before Judge Samuel Conti beginning on October 16, 2012.


Plaintiffs seek an order designating certain facts as established and attorneys' fees. The Court will ...

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