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Leibovitz v. City of New York

United States District Court, S.D. New York

February 3, 2017

ETAN LEIBOVITZ, Plaintiff,
v.
THE CITY OF NEW YORK, et al ., Defendants.

          OPINION AND ORDER

          HENRY PITMAN, United States Magistrate Judge

         By motion dated July 1, 2016, plaintiff seeks to compel the City of New York (the "City") to produce certain documents (Docket Item ("D.I.") 85). For the reasons set forth below, plaintiff's motion is granted in part and denied in part.

         This is an action brought pursuant to the Eighth and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983 and New York state law, in which plaintiff alleges that he was subjected to excessive force and an unreliable investigation and hearing concerning that use of force while a pretrial detainee in the Manhattan Detention Complex. Plaintiff claims that he was injured as a result of the force used against him and that he spent seven days in punitive segregation as a result of the defendants' conduct.

         There are certain prerequisites to bringing a motion to compel pursuant to Fed.R.Civ.P. 37. One of those prerequisites is the obligation to meet and confer with the party failing to provide discovery. Specifically, Federal Rule of Civil Procedure 37(a)(1) provides that

[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

         To satisfy this requirement, the certification must "set forth . . . essential facts sufficient to enable the court to pass a preliminary judgment on the adequacy and sincerity of the good faith conferment between the parties, " such as the names of the people who attempted to confer, the mode of communication, the dispute at issue and the date, time and results of the discussion. AIU Ins. Co. v. TIG Ins. Co., 07 Civ. 7052 (SHS)(HBP), 2008 WL 4067437 at *4 (S.D.N.Y. Aug. 28, 2008) (Pitman, M.J.) (alteration in original; internal quotation marks omitted), modified, 2009 WL 1953039 (S.D.N.Y. July 8, 2009) (Pitman, M.J.); see Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., 96 Civ. 7590 (DAB)(JCF), 1998 WL 67672 at *2-*3 (S.D.N.Y. Feb. 18, 1998) (Francis, M.J.). "A conclusory statement in an affidavit asserting that the movant fulfilled the meet-and-confer requirement is insufficient." Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., supra, 1998 WL 67672 at *2, citing Tri-Star Pictures, Inc. v. Unger, 171 F.R.D. 94, 99 (S.D.N.Y. 1997) (Edelstein, D.J.). Nevertheless, "courts have excused the meet-and-confer requirement where temporal exigencies required speedy action and where efforts at informal compromise would have been clearly futile." Mason Tenders Dist. Council of Greater N.Y. v. Phase Constr. Servs., Inc., 14 Civ. 6016 (ER), 2016 WL 7031625 at *11 n.16 (S.D.N.Y. Nov. 30, 2016) (Ramos, D.J.) (internal quotation marks omitted); Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., supra, 1998 WL 67672 at *3.

         Plaintiff failed to comply with the requirements of Fed.R.Civ.P. 37(a)(1). Plaintiff states, in his motion, in unsworn and conclusory terms, that he "met and conferred with Defendants' counsel in a good faith effort to resolve the discovery matters that are [the] subject of this motion" (Plaintiff's Motion to Compel Production of Documents, dated July 1, 2016 (D.I. 85) ("Motion to Compel"), at 2). However, he does not provide any evidentiary support establishing that a meet-and-confer actually occurred.[1] Nevertheless, plaintiff and the City's counsel have appeared before me several times and there is clearly personal friction between them. Given this friction, I conclude that attempting to enforce the meet-and-confer requirement would do nothing to advance the action. I shall, therefore, excuse plaintiff's failure to comply with the meet-and-confer requirement and proceed to the merits of the dispute.

         As amended in December 2015, Federal Rule of Civil Procedure 34(b)(2)(B) provides that the response to a request for production "must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons." (Emphasis added).

General boilerplate objections are inappropriate and unpersuasive. See A. Farber & Partners, Inc. v. Garbe-r, 234 F.R.D. 186, 188 (C.D. Cal. 2006) ("[G]eneral or boilerplate objections such as 'overly burdensome and harassing' are improper -- especially when a party fails to submit any evidentiary declarations supporting such objections."). The recent amendments to Rule 34 make this particularly clear. See Fed.R.Civ.P. 34(b)(2)(B) ("For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons."). Defendants' initial responses consist solely of such boilerplate objections. Accordingly, they are plainly insufficient.

Moser v. Holland, No. 2:14-cv-02188-KJM-AC, 2016 WL 426670 at *3 (E.D. Cal. Feb. 4, 2016); accord 2015 Advisory Committee Notes to Rule 26 (relocation of the proportionality requirement in 2015 amendment is not "intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional"); Nerium Skincare, Inc. v. Olson, No. 3:16-cv-1217-B, 2017 WL 277634 at *1 (N.D. Tex. Jan. 20, 2017) ("General or boilerplate objections are invalid . . . ."); Ramos v. Town of East Hartford, No. 3:16-cv-166 (VLB), 2016 WL 7340282 at *2 (D. Conn. Dec. 19, 2016) ("The Court notes that the 2015 revision of the Federal Rules precludes the use of the type of boilerplate objections on which Defendants rely."); Buskirk v. Wiles, No. 3:15-03503, 2016 WL 7118288 at *2 (S.D. W.Va. Dec. 6, 2016) ("[O]bjections to Rule 34 requests must be stated specifically and boilerplate objections regurgitating words and phrases from Rule 26 are completely unacceptable."); Keycorp v. Holland, No. 3:16-cv-1948-D, 2016 WL 6277813 at *11 (N.D. Tex. Oct. 26, 2016) ("[B]oilerplate objections are improper and result in waiver of the unsupported objections."); State Farm Mut. Auto. Ins. Co. v. Universal Rehab Servs., Inc., No. 15-10993, 2016 WL 5369610 at *2 (E.D. Mich. Sept. 26, 2016) ("Generally, boilerplate objections without support are improper."); Asphalt Paving Sys., Inc. v. General Combustion Corp., No. 6:15-cv-49-Orl-41TBS, 2016 WL 3167712 at *2 (M.D. Fla. June 7, 2016) ("The Court does not consider frivolous, conclusory, general, or boilerplate objections."); see Orix USA Corp. v. Armentrout, No. 3:16-mc-63-N-BN, 2016 WL 4095603 at *2 (N.D. Tex. Aug. 1, 2016) (in responding to a subpoena duces tecum, "general or boiler-plate [or unsupported] objections" are prohibited (alteration in original)).

         The City lists general, boilerplate objections to each of plaintiff's requests for production. Because such objections violate Fed.R.Civ.P. 34(b)(2)(B), they are stricken.

         I now turn to the specific requests in issue.

         Seventh Request for Production of Documents

1. Inmates' Mug Shots, defined as "the mug shots pertaining to the inmates in 4 South on the day of ...

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