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Ferrer v. Racette

United States District Court, N.D. New York

May 4, 2017

RODNEY FERRER, Plaintiff,
v.
STEVEN RACETTE, et al., Defendants.

          OFFICE OF JESSICA M. GORMAN JESSICA M. GORMAN, ESQ. Attorney for Plaintiff.

          HON. ERIC T. SCHNEIDERMAN CATHY Y. SHEEHAN, ESQ. ORIANA L. CARRAVETTA, ESQ. Attorney General of the State of New York Attorney for Defendants Racette, Kelly, Goodman, Waite, and Jenkins Assistant Attorney Generals.

          LAMARCHE, SAFRANKO LAW FIRM ANDREW R. SAFRANKO, ESQ. Attorney for Defendant Frazier.

          HARRIS, CONWAY LAW FIRM RYAN T. DONOVAN, ESQ. Attorney for Defendant Livermore.

          LIPPES MATHIAS WEXLER FRIEDMAN LLP JEFFREY P. MANS, ESQ. Attorney for Defendants and Counter Claimants Beecher, Burch, and McClenning.

          DECISION AND ORDER

          DANIEL J. STEWART UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Rodney Ferrer moves to quash a subpoena issued, after the close of discovery, by Attorney Jeffrey Mans, who is counsel for several of the Defendants. Dkt. No. 113 & 117. The subpoena in question seeks to require the New York State Department of Corrections and Community Supervision (“DOCCS”) to disclose certain Inmate Informational Reports relating to Plaintiff during a six-month period of time from June 1, 2011 to November 30, 2011. Id. The Defendants oppose the Motion to Quash. Dkt. No. 116. For the reasons that follow, the Plaintiff's request to quash the subpoena is granted.

         I. BACKGROUND

         On November 12, 2014, Plaintiff, by his counsel, filed a civil rights Complaint against several DOCCS employees arising out of various incidents which allegedly occurred at the Great Meadow Correctional Facility, culminating in an allegedly unlawful and wrongful assault of Plaintiff on November 15, 2011. Dkt. No. 1, Compl., at ¶¶ 19-67. Plaintiff alleges that as a result of Defendants' misconduct, he was “seriously injured.” Id. at ¶¶ 88, 93, & 105.

         This case has been in the discovery phase for over a year. On October 28, 2015, the Court issued a Uniform Pretrial Scheduling Order (“UPSO”), which directed that discovery be completed by June 17, 2016. Dkt. No. 45. Since the issuance of the UPSO, the parties have sought Court intervention regarding several discovery disputes, and have sought extensions of the discovery deadline, which were granted. See Dkt. Nos. 68, 78, 79, 82, 83, 84, 87, 88, 89, 92, 94, & 104 (orders issued regarding discovery disputes after discovery telephone conference held); Dkt. Nos. 68 (Text Order reserving on extension request until status report filed on July 18, 2016); 91 (Text Order extending discovery, at request of the parties, to December 30, 2016); 103 (Text Order extending discovery, at request of the parties, to February 28, 2017). Despite short extensions granted in order to complete certain depositions, [1] the discovery deadline ended on February 28, 2017.

         On or about March 16, 2017, counsel for Defendants Beecher, Burch, and McClenning, issued a subpoena to DOCCS requesting “[c]ertified copies of all Inmate Informational Reports from Great Meadow Correctional Facility regarding the plaintiff, inmate Rodney Ferrer (DIN 08-A-2299) from June 1, 2011 to November 30, 2011.” Dkt. No. 115. The original subpoena was dated March 16, 2017, and called for the production of the requested information on March 24, 2017. Id. But, the subpoena was not served upon Plaintiff's counsel until March 22, 2017. Dkt. No. 113.[2] On that date Plaintiff's counsel wrote to the Court requesting an immediate telephone conference. Id. That request was granted and a conference with all counsel and the Court was held the next day. See Text Minute Entry, dated Mar. 24, 2017. At that time, I directed additional briefing from the parties, and further directed that DOCCS submit the disputed documents directly to the Court for an in camera review. Id. That supplemental briefing has now been submitted, Dkt. Nos. 116 & 117, and the disputed documents were supplied on May 1, 2017.

         II. DISCUSSION

         This Court has broad discretion to manage and direct the discovery process in the cases before it. Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004); McKay v. Triborough Bridge and Tunnel Auth., et al, 2007 WL 3275918 at *1 (S.D.N.Y. Nov. 5, 2007). In the present case, the Court issued a UPSO, which was then modified on several occasions to comport with the realities of litigation and the desires of the parties. However, the final deadline for discovery, February 28, 2017 (with the exception of a single deposition), has now expired. No request for an extension of the UPSO has been made by Attorney Mans, or any other counsel.

         In light of the foregoing, the question then becomes whether it is appropriate for counsel to issue a subpoena in order to obtain discovery information after the discovery deadline has expired. ...


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