United States District Court, E.D. New York
VERNON M. O'GARRA, Plaintiff,
NORTHWELL HEALTH, fka, NORTH SHORE LONG ISLAND JEWISH MEDICAL HEALTH SYSTEM, INC., Defendants.
MEMORANDUM AND OPINION
Y. Shields United States Magistrate Judge
an employment discrimination case in which Plaintiff Vernon
M. O'Garra (“Plaintiff” or
“O'Garra”) claims that his former employer,
Defendant Northwell Health (“Northwell” or
“Defendant”) discriminated against him on the
basis of his race, age and gender. See generally
Complaint herein Docket Entry (“DE”) 1. Presently
before the Court are the parties' discovery disputes
relating to the proper scope of document discovery.
was employed by Northwell (or its predecessor corporation)
beginning in 2002. This is not Plaintiff's first claim
against Northwell. In fact, in 2014, Plaintiff settled
employment discrimination claims against this same employer.
The present action relates to the denial of post-settlement
positions. See DE 1 ¶¶ 49-50 (setting
forth particular positions); see also DE 1 ¶¶ 53
(setting forth applications for particular positions with a
different company, albeit allegedly via a related website).
Plaintiff claims that he was denied these post-2014
opportunities for discriminatory reasons.
25, 2015, Plaintiff filed a claim of discrimination with the
New York State Division of Human Rights (the
“NYSDHR”). That claim alleged direct
discrimination as well as discrimination in retaliation for
the making of his prior claim. On January 12, 2016, the
NYSDHR issued a finding of no probable cause to believe that
discrimination had occurred.
March 22, 2016, Plaintiff received an offer of employment
from a company referred to in the Complaint as “Optimum
360” to serve as its Supervisor of Patient Access
Services. DE 1 at ¶ 62 (Optimum 360 is referred to in
the parties' papers and hereinafter as
“Optum360”). He alleges that this position is
“the same position” to which he applied for
“countless times” at Northwell. Id.
Plaintiff took the position with Optum360, and it appears
that he is presently employed there. Plaintiff states that
his salary at Optum360 exceeds what he was being paid at
Prior Proceedings and the Present Motions
parties herein have engaged in extensive Tier I and Tier II
paper discovery. Despite discovery rulings made after a
telephone conference held on May 17, 2017, counsel could not
resolve their differences. Accordingly, they briefed the
opposing cross-motions for discovery that are presently
before the Court. As discussed in greater detail below,
Defendant's motion seeks to have Plaintiff execute a
particular authorization allowing Defendant access to certain
of Plaintiff's post-termination employment records.
Defendant also seeks more complete responses to discovery.
Plaintiff's motion seeks additional document production
and responses to interrogatories. The Court turns to the
merits of both motions.
scope of discovery is set forth in Rule 26 of the Federal
Rules of Civil Procedure. That Rule has been amended, on
several occasions, to reflect evolving judgments as to the
proper scope of discovery. Over time, these amendments have
been aimed at striking the proper balance between the need
for evidence, and the avoidance of undue burden or expense.
Pothen v. Stony Brook University, 2017 WL 1025856,
*2 (E.D.N.Y. March 15, 2017). In 1999, Rule 26(b)(1) stated
that “[p]arties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject
matter involved in the pending action, whether it relates to
the claim or defense of the party seeking discovery or to the
claim or defense of any other party.” Fed.R.Civ.P.
26(b)(1) (1999). In 2000, in an effort to curb over-discovery
that took advantage of tying the term “subject
matter” to the definition of the scope of discovery,
Rule 26 was amended. See Fed.R.Civ.P. 26(b)(1), Advisory
Comm. Notes (2000). That amendment required a party to show
“good cause” before obtaining discovery that is
“relevant to the subject matter involved in the
action.” Fed.R.Civ.P. 26(b)(1). Id.
was again amended effective December 1, 2015. The scope of
discovery is now defined to consist of information that is
relevant to the parties' “claims and
defenses.” Thus, the discretionary authority to allow
discovery of “any matter relevant to the subject matter
involved in the action” has been eliminated.
Additionally, the current version of Rule 26 defines
permissible discovery to consist of information that is, in
addition to being relevant “to any party's claim or
defense, ” also “proportional to the needs of the
“is relevant if: ‘(a) it has any tendency to make
a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining
the action.” Vaigasi v. Solow Mgmt. Corp.,
2016 WL 616386, at *11 (S.D.N.Y. Feb. 16, 2016) (quoting
Fed.R.Evid. 401). Further, “[t]he party seeking the
discovery must make a prima facie showing, that the discovery
sought is more than merely a fishing expedition.”
Evans v. Calise, 1994 WL 185696, at *1 (S.D.N.Y.
1994); see also Mandell v. The Maxon Co., Inc., 2007
WL 3022552, at *1 (S.D.N.Y. 2007) (“[T]he party seeking
discovery bears the burden of initially showing
relevance.” (citation omitted)); see also Surles v.
Air France, 2001 WL 1142231, at *2 (S.D.N.Y. 2001)
(refusing to permit discovery where defendant had no factual
basis that requests would lead to relevant evidence). It is
well-established that “[m]otions to compel are left to
the court's sound discretion.” Mirra v.
Jordan, 2016 WL 889683, at *2 (S.D.N.Y. 2016); see
also Liberty Mut. Ins. Co. v. Kohler Co., 2010 WL
1930270, at *2 (E.D.N.Y. 2010) (“[A] motion to compel
is entrusted to the sound discretion of the district
demonstrated, the discretionary authority to allow discovery
of “any matter relevant to the subject matter involved
in the action” has been eliminated. Additionally, the
current version of Rule 26 defines permissible discovery to
consist of information that is, in addition to being relevant
“to any party's claim or defense, ” also
“proportional to the needs of the case.”
proportionality factors have now been incorporated into the
Rule 26(b)(1) definition, those factors were already a part
of Federal discovery standards, appearing in Rule
26(b)(2)(C)(iii). Those proportionality factors have now been
restored to the place of their intended importance by their
incorporation into the very definition of permissible
discovery. See Fed.R.Civ.P. 26(b)(1), Advisory Comm. Notes
(2015) (noting that amendment “restores the place of
their intended importance by their incorporation into the
very definition of permissible discovery. See
Fed.R.Civ.P. 26(b)(1), Advisory Comm. Notes (2015) (noting
that amendment “restores the proportionality factors to
their original place in ...