Moroughan v. County of Suffolk

          DECISION AND ORDER

          A. KATHLEEN TOMLINSON, MAGISTRATE JUDGE

         I. Preliminary Statement

         The 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.

         At the 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.

         II. The Parties' Contentions

         Counsel 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.

         Plaintiff's 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).

         Ultimately, 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).

         III. 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”).

         The 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).

         In 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 relevant evidence.

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.

         IV. Discussion

         A. The Timing of Trial

         No 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^[1]; Pharmacy Inc., 2008 WL 4415263, at *4.

         B. Whether the Motion Is Opposed

         There 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.

         C. Prejudice to the Non-moving Party

         Defendant 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.

         D. Diligence of Defendant Nassau County and Foreseeability of Need

         The 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 motion.

• At the April 6, 2012 Initial Conference, the Court addressed the respective Internal Affairs Unit Reports as follows:

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 ...