United States District Court, E.D. New York
L. Pollak, United Stales Magistrate Judge.
January 1, 2016, Rosie Martinez (“plaintiff”)
commenced this Section 1983 civil rights action against the
City of New York (the “City”) and John and Jane
Doe 1 through 10 (“defendants”), seeking damages
and attorney's fees and costs for unreasonable force,
assault and battery, negligent hiring, intentional and
negligent infliction of emotional distress, and failure to
intervene in violation of 42 U.S.C. § 1983, the Fourth
and Fourteenth Amendments of the U.S. Constitution, and in
violation of the Constitution of the State of New York.
December 11, 2017, the parties filed a joint status report to
advise the Court of their progress in discovery after the
November 9, 2017 show cause hearing. (See Status
Report, Dec. 11, 2017, ECF No. 82). The discovery disputes
raised in the status report appear to involve the same issues
that the Court has repeatedly addressed throughout the course
of this litigation, but now presented through new counsel for
the extensive delay caused by defendants' handling of
this matter of the past two years, the Court agrees with the
plaintiff that it is reasonable to require defendants to
produce the outstanding discovery materials by December
18, 2017. The Court has repeatedly directed the
defendants to produce the materials at issue, and it should
come as no surprise that the Court expects defendants to
adhere to the Court's prior rulings.
defendants have objected to certain requests on the basis of
undue burden, but they have failed to make any showing
whatsoever that “the burden or expense of the proposed
discovery outweighs its likely benefit.” Fed.R.Civ.P.
26(b)(1). Courts “will scrutinize claims that the
burden of producing requested information is
disproportionate; and an unsupported burden objection is not
a guaranteed protection against responding to
discovery.” 8 Charles A. Wright et al.,
Federal Practice and Procedure § 2008.1 (3d ed.
2017 update). The party resisting discovery bears the burden
of demonstrating not only that the discovery sought is
burdensome or expensive, but also must “show that the
burden or expense is unreasonable in light of the benefits to
be secured from the discovery.” Manning v. General
Motors, 247 F.R.D. 646, 654 (D. Kan. 2007). Defendants
“cannot rely on some generalized objections, but must
show specifically how each request is burdensome . . . by
submitting affidavits or some detailed explanation as to the
nature of the claimed burden.” Id. (citations
and quotations omitted); accord Chen-Oster v. Goldman,
Sachs & Co., 285 F.R.D. 294, 303-08 (S.D.N.Y. 2012)
(recognizing that a specific and detailed showing of burden
or expense is the starting point for the proportionality
analysis under Rule 26).
defendants may submit appropriate affidavits or other papers
to meet their burden of demonstrating undue burden or expense
by December 15, 2017 and the Court will consider
whether defendants have met their burden; otherwise, the
defendants shall respond to the discovery requests.
status report also raises the issue of defendants' intent
to file a motion for summary judgment. (See Status
Report at 2, 5). The “defendants note that they intend
to move for summary judgment following the close of
discovery.” (Id. at 5). The defendants also
note that “[c]urrent defense counsel has never
represented that defendants did not plan on moving for
summary judgment[.]” (Id. at 5 n.3). That
current defense counsel, who only entered an appearance on
November 17, 2017, did not represent that defendants would
move for summary judgment is immaterial. The case does not
start anew each time there is a change in attorney: the
defendants and their new counsel remain bound by the
agreements and stipulations made by prior counsel.
importantly, plaintiff's arguments are grounded in the
Court's prior Order, and not in an agreement among
counsel. On October 18, 2017, the Court ordered that the
defendants notify the Court by November 30, 2017 if
they intend to file motions for summary judgment.
(See Minute Entry, Oct. 18, 2017, ECF No. 75).
Counsel for the defendants did not comply with the Order and
made no indication that the defendants intended to move for
summary judgment. It was not until just recently, after new
counsel appeared to represent the defendants that the issue
of a summary judgment motion was raised.
court-ordered deadline “may be modified only for good
cause and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). The defendants have made no showing of good cause.
Plaintiff is therefore correct that the defendants improperly
seek to avoid this Court's prior Order. Nonetheless, the
defendants are free to apply to the district court for leave
to file a motion for summary judgment, but any such
application must explicitly notify the district judge that
defendants' request is untimely under the terms of this
Court's prior Order and they shall set forth “good
cause” for their untimely filing, so that the district
judge can consider their request.
order to facilitate the expeditious resolution of any
outstanding discovery disputes not resolved by this Order,
the Court has scheduled a status conference for
December 20, 2017 at 12:00 p.m. in Courtroom
Clerk is directed to send copies of this Order to the parties
either electronically through the Electronic Case Filing
(ECF) system or by mail.