United States District Court, E.D. New York
THOMAS M. MOROUGHAN, Plaintiff,
THE COUNTY OF SUFFOLK, SUFFOLK COUNTY POLICE DEPARTMENT, SUFFOLK DETECTIVES RONALD TAVARES, CHARLES LESER, EUGENE GEISSINGER, NICHOLAS FAVATTA, and ALFRED CICCOTTO, DETECTIVE/SGT. WILLIAM J. LAMB, SGT. JACK SMITHERS, SUFFOLK POLICE OFFICERS WILLIAM MEANEY, ENID NIEVES, CHANNON ROCCHIO, and JESUS FAYA and SUFFOLK JOHN DOES 1-10, THE COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, SGT. TIMOTHY MARINACI, DEPUTY CHIEF OF PATROL JOHN HUNTER, INSPECTOR EDMUND HORACE, COMMANDING OFFICER DANIEL FLANAGAN, DETECTIVE/SGT. JOHN DEMARTINIS, NASSAU POLICE OFFICERS ANTHONY D. DILEONARDO, EDWARD BIENZ and JOHN DOES 11-20, Defendants.
DECISION AND ORDER
KATHLEEN TOMLINSON, MAGISTRATE JUDGE
history of discovery and extensive motion practice in this
case is well-known and well-documented and the Court will not
repeat that chronology here. Instead, the Court focuses on
the motion by counsel for defendant Nassau County to re-open
discovery at this point in this case. See DE 246.
February 13, 2018 Motion Hearing/Status Conference,
Plaintiff's counsel advised the Court that he had been
served by Nassau County's counsel just the day before
with a purported demand for production of documents directed
to the Internal Affairs Unit (“IAU”) of the
Suffolk County Police Department. See February 13,
2018 Civil Conference Minute Order [DE 241]. Plaintiff's
counsel also stated that he was made aware that Nassau
County's counsel was attempting to serve deposition
notices for two members of the Suffolk County Board of
Review. Id. Plaintiff objected on both counts. The
Court informed Nassau County's counsel that discovery was
closed and had been for some time. Consequently, if counsel
intended to pursue this issue, the Court informed him that he
would have to file a motion seeking to re-open discovery and
meet the threshold criteria for establishing good cause as to
why such relief should be granted at this juncture.
The Parties' Contentions
for Nassau County, Christopher Clarke, Esq., asserts that the
County should be permitted the additional discovery sought
here because the “discovery demand and deposition
subpoena mirror plaintiff's subpoena served upon Nassau
IAB Detective Distler which resulted in Nassau's motion
to quash filed on June 15, 2015.” DE 246. In 2015,
Nassau County argued that the IAU materials sought by the
plaintiff were privileged and not subject to disclosure.
Id. According to Attorney Clarke, based upon the
February 5, 2018 decision issued by this Court denying
Nassau's motion to quash and directing that Detective
Distler be presented for deposition, he proceeded to (1)
serve demands on Suffolk County for its Internal Affairs Unit
documents relating to this case and (2) serve a subpoena to
depose Suffolk's lead investigator. Id. Attorney
Clarke maintains that discovery is ongoing and not closed and
that “there has been no delay from Nassau in seeking
this discovery . . . and no realistic concern of any delay in
this case.” Id.
counsel opposes the motion, pointing out that this case was
commenced some six years ago and that after “years of
discovery, the day before the parties appeared before Judge
Joseph F. Bianco on February 13, 2018 to have a summary
judgment motion schedule set, Nassau advised that it intended
to depose an investigator from the Suffolk IAB. .
.” DE 250. Counsel further argues that defendant Nassau
County received back in September 2015 the audio-recordings
of the Suffolk IAU interviews which it is now purportedly
seeking in its first document request. Plaintiff's
counsel adds that “[i]n fact, these were produced
before Mr. Clarke's office started representing
Nassau, and plaintiff utilized transcripts of these
recordings during numerous depositions.” Id.
(emphasis in original).
plaintiff's counsel argues that Nassau County had ample
opportunity to pursue the evidence it now seeks during the
multi-year course of discovery. Plaintiff maintains that
Nassau County has not shown the requisite good cause to
justify the re-opening of discovery at this late date and has
not met the six-part test articulated by this Court in
Pharmacy Inc. v. Am. Pharm. Partners, Inc., CV
05-776, 2008 WL 4415263, at *3 (E.D.N.Y. Sept. 24, 2008).
Applicable legal standard
“‘A party seeking to reopen discovery bears the
burden of establishing good cause and discovery should not be
extended when there was ample opportunity to pursue the
evidence during discovery.'” Leong v. 127 Glen
Head Inc., CV 13-5528, 2016 WL 845325, at *3 (E.D.N.Y.
Mar. 2, 2016) (quoting Thieriot v. Jaspan Schlesinger
Hoffman LLP, No. 07-CV-5315, 2010 WL 4038765 (E.D.N.Y.
Sept. 30, 2010)); see Burlington Coat Factory Warehouse
Corp. v. Esprit De Corp., 769 F.2d 919, 927 (2d Cir.
1985) (denying plaintiff's request to reopen discovery
when plaintiff had “ample time in which to pursue the
discovery that it now claims is essential”).
decision whether to reopen discovery is within a district
court's discretion. Krawec v. Kiewit Constructors
Inc., No. 11-CV-123, 2013 WL 1104414, at *8 (S.D.N.Y.
Mar. 1, 2013); see Wingates, LLC v. Commonwealth Ins. Co.
of Am., No. 14- CV-2119, 2015 WL 5692303, at *3 (2d Cir.
Sept. 29, 2015) (summary order) (finding no abuse of
discretion in the district court's “refus[al] to
allow [the plaintiffs] to reopen discovery for the purposes
of disclosing an expert witness pursuant to Federal Rule of
Civil Procedure 26(a)(2)”); see generally Wills v.
Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004)
(stating that a district court has “broad discretion to
direct and manage the pre-trial discovery process.”).
“As a general rule, discovery should only be re-opened
for good cause, depending on the diligence of the moving
party.” Krawec, 2013 WL 1104414, at *8 (citing
Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d
Cir. 2003)); see, e.g., Bakalar v. Vavra,
851 F.Supp.2d 489, 493 (S.D.N.Y. 2011) (“In deciding
whether to reopen discovery, courts consider whether good
cause exists.”) (citing Gray v. Town of
Darien, 927 F.2d 69 (2d Cir. 1991)); see Marshall v.
Starbucks Corp., No. 11-CV-02521, 2013 WL 123763, at *2
(S.D.N.Y. Jan. 8, 2013) (same).
analyzing a request to re-open discovery, courts apply the
following six-part test:
1) whether trial is imminent, 2) whether the request is
opposed, 3) whether the non-moving party would be prejudiced,
4) whether the moving party was diligent in obtaining
discovery within the guidelines established by the court, 5)
the foreseeability of the need for additional discovery in
light of the time allowed for discovery by the district
court, and 6) the likelihood that the discovery will lead to
Pharmacy, Inc., 2008 WL 4415263 at *3 (citations
omitted); accord Bakalar v. Vavra, 851 F.Supp.2d
489, 493 (S.D.N.Y. 2011). The Court will address each of
these factors with respect to defendant Nassau County's
motion to re-open discovery.
The Timing of Trial
trial date has been set by Judge Bianco. In fact, the parties
had a schedule in place for briefing summary judgment motions
when the instant issue arose. Plaintiff does not contest this
fact. Consequently, the first factor weighs in defendant
Nassau County's favor. See Spencer v. Int'l
Shoppes, Inc., 06 Civ. 2637, 2011 WL 3625582, at * 2
(E.D.N.Y. Aug. 16, 2011); Thieriot, 2010 WL 4038765,
at *6; Pharmacy Inc., 2008 WL 4415263,
Whether the Motion Is Opposed
is no question that plaintiff vigorously opposes defendant
Nassau County's motion to re-open discovery. Nassau
County's counsel here attempts to limit the sphere of
consideration to defendant Suffolk County as the repository
of the documents at issue. DE 246. Specifically, Attorney
Clarke states that “the test should be resolved in
Nassau's favor because Suffolk . . . has not objected to
the discovery demands at issue and has agreed to accept
service of Nassau's subpoena and has confirmed via email
that Sergeant Lynch is available for deposition as
noticed.” Id. Suffolk County's sudden
change of heart and new-found willingness to cooperate -
contrary to its earlier posture regarding any disclosure of
Nassau County's IAU Report - is not the deciding factor
here. There is no such limitation in the second prong of the
standard set out in Pharmacy, Inc. and Nassau
County's counsel has provided no case law supporting this
myopic and disingenuous view. Consequently, plaintiff's
emphatic opposition to the relief sought by the Nassau County
defendants results in this factor favoring the plaintiff.
Prejudice to the Non-moving Party
Nassau County's counsel points out that the only
non-moving party to claim prejudice is the plaintiff and
“that objection is limited only to meritless concerns
of delay.” Id. According to Attorney Clarke,
“[s]ince Suffolk has not objected, has accepted service
and confirmed attendance, relevance and discoverability are
moot issues, and delay is not a concern.” The Court
disagrees. Delay may not be a concern to Nassau County, but
it is of understandable concern to the Plaintiff. Likewise,
Suffolk County's about-face and willingness to assist
Nassau County at this juncture are irrelevant to the analysis
of this third prong of the test for re-opening discovery.
There is no doubt that re-opening discovery will cause
plaintiff to incur costs and expenses associated with
reviewing documents which Nassau County is requesting as well
as preparation for and attendance at requested depositions of
the Suffolk County investigators responsible for the IAU
Report. Moreover, if defendants are permitted to conduct
depositions, new information will likely be disclosed which
the plaintiff has had no opportunity to explore and/or rebut.
The prejudice to the Plaintiff here is not only the further
postponement of this six- year old case, but the toll on the
memories of witnesses as this case lags. As a result, the
Court finds that this factor slightly favors the plaintiff.
Diligence of Defendant Nassau County and Foreseeability of
Second Circuit has emphasized that “a finding of
‘good cause' depends on the diligence of the moving
party.” Parker v. Columbia Pictures Indus.,
204 F.3d 326, 340 (2d Cir. 2000). The diligence and
foreseeability factors here weigh against defendant Nassau
County. The real issue here boils down to the strategic
decision Nassau County's counsel made in 2015 not to seek
the discovery currently at issue here because doing so, in
counsel's reasoning, would have run contrary to the
litigation position the County had taken, namely, that its
own Internal Affairs documents were privileged and not
discoverable. This was a calculated risk and decision which
the County undertook knowingly and freely. A review of some
of the chronology of this case is warranted in order to place
into context Nassau County's current contentions on this
• At the April 6, 2012 Initial Conference, the Court
addressed the respective Internal Affairs Unit Reports as
Plaintiff's counsel seeks the Internal Affairs Reports
prepared by the respective police departments in both
counties. With regard to Nassau County, Attorney Ferguson
stated that the police department has 18 months from the date
of the underlying incident to complete the report and,
consequently, Nassau has four more months for completion of
that report. Counsel for Suffolk County will get back to me
expeditiously with a response as to the timeframe in which
Suffolk expects to finish its report. After some discussion
regarding the case law addressing production of internal
affairs reports, I stated to counsel that this
production would likely be required, even in
redacted form, solely to the respective parties in this case
for purposes of this litigation only, and subject to a duly
executed Stipulation and Order of Confidentiality.
Plaintiff's counsel stated that he was
reserving his right to take depositions of the authors of the
respective reports once they are completed.
Counsel for Suffolk County stated that he did not
see any purpose in examining the authors of the report when
the report itself contains statements ...