United States District Court, W.D. New York
DARCY M. BLACK, Plaintiff,
BUFFALO MEAT SERVICE INC., et al., Defendants.
Hugh B. Scott United States Magistrate Judge.
the Court are the applications of the parties to recover
motion costs for their motions to compel: plaintiff's
motion (Docket No. 50) and defendants' motion (Docket No.
51). This Court (Docket No. 40) granted plaintiff's
motion to compel (Docket No. 34) but only partially granted
defendants' own motion to compel (Docket No. 36). That
Order recognized that both sides prevailed in some sense on
their motions and allowed applications to recover their
respective discovery motion costs (Docket No. 40, Order of
March 31, 2017, at 10). Defendants moved (Docket No. 42) to
reconsider this Court's Order (Docket No. 40), delaying
these fee applications. The reconsideration Order (Docket No.
48, Order of June 23, 2017), allowed the parties to move to
recover their reasonable motion costs where they prevailed in
their respective motions (id. at 16-17). Familiarity
with this Order (and prior discovery proceedings held herein)
in time for filing any objections to the June 23, 2017, Order
(see Fed.R.Civ.P. 72(a)), the fee application
motions were due by July 10, 2017, with responses to the
opponent's application due by July 17, 2017, and the
application motions deemed submitted (without oral argument)
on July 17, 2017 (Docket No. 49).
an employment discrimination action wherein plaintiff alleges
violations of Title VII, the Civil Rights Act of 1964, the
Equal Pay Act, 42 U.S.C. § 1981, and the New York State
Human Rights Law, see Black v. Buffalo Meat Serv.,
No. 15CV49, 2016 U.S. Dist. LEXIS 164441, at *2-4 (W.D.N.Y.
Nov. 29, 2016) (Scott, Mag. J.) (Docket No. 32, Order of Nov.
29, 2016, at 2-3). Plaintiff filed a series of motions to
compel (Docket Nos 23, 28, 34) as well as defendants'
cross-motion to compel (Docket No. 36). The present fee
application arises from the last series of motions
(plaintiff's motion, Docket No. 34, as well as from
defendants' cross-motion, Docket No. 36, to compel and
defense motion for reconsideration, Docket No. 42).
Third Motion to Compel (No. 34)
to the present fee applications, plaintiff sought compliance
with this Court's August 16, 2016, and November 29, 2016,
Orders (Docket Nos. 27, 32) and production of all documents
responsive to her Request Nos. 12 and 13 (Docket No. 34),
seeking tax and payroll records from January 2016 to present
(Docket No. 34, Pl. Atty. Decl. ¶ 26).
renewed their response that they produced, among 500 pages of
documents already produced, materials responsive to
plaintiff's outstanding demands (Docket No. 36, Defs.
Memo. at 7-9). Defense counsel's affidavit stated that
defendants supplemented tax and payroll documents from the
period of plaintiff's tenure, with over 2, 700 pages of
materials (Docket No. 37, Defs. Atty. Aff. ¶¶ 36,
Cross-Motion (No. 36)
addition to responding to plaintiff's last motion to
compel, defendants cross-moved plaintiff to produce her W-2,
tax returns and to execute medical and Social Security
authorizations (Docket No. 36). They also wanted plaintiff to
schedule her deposition following defense receipt of
earnings, tax, and medical records (id.).
of March 31, 2017 (No. 40)
Order of March 31, 2017, this Court granted plaintiff's
motion to compel and ordered compliance with the prior Orders
while granting in part and denying in part defendants'
motion to compel (Docket No. 40, Order of Mar. 31, 2017).
Pertinent to the reconsideration motion, this Court held that
defendants were to produce tax and payroll records based upon
representations that only 500 pages of those records were
produced (id. at 6-7). This Court then found that
plaintiff need not produce her joint tax returns but only
produce W-2 forms instead (id. at 8-9). After
extending the Scheduling Order deadlines (id. at
9-10), this Order also set forth briefing for discovery
sanctions (id. at 10); this briefing was held in
abeyance pending resolution of the present reconsideration
motion (Docket No. 43).
Motion for Reconsideration (No. 42)
then sought reconsideration of the March 31, 2017, Order
(Docket No. 40); seeking denial of plaintiff's motion to
compel further production from them of payroll and tax
documents (Docket No. 42, Defs. Notice of Motion at 1). They
contended that defendants did supplement the 500 pages of
production with 2, 700 additional pages of its employees'
payroll and tax documents to 2010 (id., Defs. Memo.
at 2-3, 4-5). They stated that they noted this
supplementation in prior proceedings (Docket No. 27, Order at
15; Docket No. 25, Defs. Memo. at 2; Docket No. 36, Defs.
Atty. Aff. ¶¶ 36, 38, 39; Docket No. 30, Defs.
Memo. at 1, 2) but this Court disregarded it (see
Docket No. 42, Defs. Memo. at 6). They asserted that they
produced in supplementation weekly payroll records of all
employees (and not merely comparable employees) during
plaintiff's employment and their W-2 statements and W-2
summary reports (Docket No. 42, Defs. Memo. at 4-5).
Defendants also wanted reconsidered the denial (in part) of
their motion to compel plaintiff's redacted tax returns,
with defendants seeking disclosure of plaintiff's source
of income during the course of this litigation (id.
at 9). Defendants also sought redacted tax returns to learn
the sources of plaintiff's post-termination income
(Docket No. 42, Defs. Notice of Motion at 1).
countered that there is no motion for reconsideration and,
under Rules 59(e) or 60(b), a non-final Order cannot be
reconsidered, citing this Court's earlier Order denying
reconsideration of plaintiff's motion (Docket No. 44, Pl.
Atty. Decl. ¶¶ 12-[2d] 12; see Docket No.
32, Order at 14; Black, supra, 2016 U.S.
Dist. LEXIS 164441, at *19-20; Docket No. 33, 3d Am.
Scheduling Order at 14). She argued that defendants still had
not produced payroll or tax records after 2010
(Docket No 44, Pl. Atty. Decl. ¶¶ 20, 22-23);
defendants supplemented with records only during the period
of plaintiff's employment, up to 2010 and merely repeated
arguments that failed in three ...