In The Struggle Productions LLC v. Collins

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN THE STRUGGLE PRODUCTIONS LLC, Plaintiff, 24-CV-02776 (JAV) v.

ROLAND COLLINS and BSB RECORDS, NOTICE OF REASSIGNMENT INC., AND ORDER LIFTING STAY Defendants.

JEANNETTE A. VARGAS, United States District Judge: This case has been reassigned to the undersigned. All counsel must familiarize themselves with the Court’s Individual Practices, which are available at https://nysd.uscourts.gov/hon-jeannette-vargas. Unless and until the Court orders otherwise, all prior orders, dates, and deadlines shall remain in effect notwithstanding the case’s reassignment.

By Orders dated November 13, 2024 (ECF No. 48), and November 21, 2024 (ECF No. 54), Magistrate Judge Valerie Figueredo directed counsel for all parties to appear for a settlement conference on November 21, 2024, and a telephonic conference on January 6, 2025, respectively. Pro se Defendant Roland Collins did not attend either conference. Nor has counsel for BSB Records, Inc. appeared in this case. In light of the Defendants’ failure to attend the scheduled conferences and to respond to Plaintiff’s outreach, the stay on this case is hereby LIFTED.

Accordingly, Defendants Collins and BSB Records, Inc. must file an answer to the Complaint by January 28, 2025. The parties are reminded that BSB Records, Inc., as a corporate entity, can only appear in this litigation through counsel. A failure to answer the Complaint by this deadline could result in Plaintiff moving for a default judgment against the Defendants. Should Plaintiff move for a default judgment, Defendants could be liable because they have not responded to this lawsuit by answering the Complaint. If Defendants do not participate in the lawsuit now, they would likely waive their right to raise factual or legal defenses that they may have to Plaintiff's claims.

Counsel for all parties shall appear for an initial pretrial conference with the Court on February 18, 2025 at 11:00am. The conference will be held in Courtroom 14C, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007. All counsel must also familiarize themselves with the Court’s Individual Rules, which are available at https://nysd.uscourts.gov/hon-jeannette-vargas, and pro se litigants must familiarize themselves with the Court’s Individual Rules and Practices in Civil Pro Se Cases, which are attached to this Order and available at https://nysd.uscourts.gov/judge/Vargas.

All counsel are required to register promptly as filing users on the Electronic Case Filing (“ECF”) system and to familiarize themselves with the SDNY ECF Rules & Instructions, which are available at http://nysd.uscourts.gov/ecf filing.php. Pro se parties are encouraged to consent to electronic service via ECF as it would ensure that the pro se party would receive documents in its case promptly by email instead of by regular mail. The consent form, along with instructions on how to fill it out, can be found at https://www.nysd.uscourts.gov/forms/consent-electronic- service-pro-se-cases. Unless and until a pro se party consents to receive electronic service, however, counsel are required to serve that pro se party with copies of documents filed with the Court and to file affidavits of such service with the Court thereafter.

The Court will set a schedule for the case at the initial case management conference. In most cases, the Court will give the parties six months (from the date of the conference) to complete all discovery and set a deadline for the filing of any motions for summary judgment 30 days after the close of discovery. In advance of the initial case management conference, the parties should, if practicable, confer with one another to determine if such a schedule would be appropriate or if there is anything unusual about the case that would require more time and be prepared to discuss those issues at the conference. The Court will issue a written order memorializing all dates and deadlines following the conference.

Attached to this Order is a Discovery Guide prepared by the Court that provides a basic overview of discovery procedures and the initial pretrial conference. The Court strongly advises Mr. Collins to read the Guide in advance of conferring with the other party or parties and in advance of the initial pretrial conference. The Guide is provided only for informational purposes and does not override or replace any orders of the Court or rules that apply to this case.

The parties are directed to confer with each other prior to the conference regarding settlement and each of the other subjects to be considered at a Federal Rule of Civil Procedure 16 conference. IT IS FURTHER ORDERED that by February 11, 2025, the parties each submit a letter, not to exceed five (5) pages, providing the following information in separate paragraphs:

(1) A brief statement of the nature of the action and the principal defenses thereto;

(2) A brief explanation of why jurisdiction and venue lie in this Court. In any action in which subject matter jurisdiction is founded on diversity of citizenship pursuant to Title 28, United States Code, Section 1332, the letter must explain the basis for the parties’ belief that diversity of citizenship exists. Where any party is a corporation, the letter shall state both the place of incorporation and the principal place of business. In cases where any party is a partnership, limited partnership, limited liability company, or trust, the letter shall state the citizenship of each of the entity’s members, shareholders, partners, and/or trustees. See, e.g., Handelsman v. Bedford Vill. Assocs. L.P., 213 F.3d 48 (2d Cir. 2000).

(3) A statement of all existing deadlines, due dates, and/or cut-off dates;

(4) A brief description of any outstanding motions;

(5) A brief description of any discovery that has already taken place and of any discovery that is necessary for the parties to engage in meaningful settlement negotiations;

(6) A list of all prior settlement discussions, including the date, the parties involved, and the approximate duration of such discussions, if any;

(7) A statement confirming that the parties have discussed the use of alternate dispute resolution mechanisms and indicating whether the parties believe that (a) a settlement conference before a Magistrate Judge; (b) participation in the District’s Mediation Program; and/or (c) retention of a privately retained mediator would be appropriate and, if so, when in the case (e.g., within the next sixty days; after the deposition of plaintiff is completed; after the close of fact discovery; etc.) the use of such a mechanism would be appropriate; and

(8) Any other information that the parties believe may assist the Court in advancing the case to settlement or trial, including, but not limited to, a description of any dispositive issue or novel issue raised by the case.

Pursuant to the Court’s Individual Rules and Practices in Civil Pro Se Cases, a copy of which is attached to this Order, all communications with the Court by a pro se party — including the aforementioned letter — should be filed with the Pro Se Intake Unit by either (1) emailing the communication as an attachment in PDF format to Pro Se Filing@nysd.uscourts.gov (for instructions, see https://nysd.uscourts.gov/forms/instructions-filing-documents-email); or (2) mailing the communication to the Pro Se Intake Unit, Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York 10007.1 No documents or court filings should be sent directly to Chambers. Copies of correspondence between a pro se party and counsel shall not be sent to the Court.

There is a Pro Se Law Clinic in this District to assist parties in civil cases who do not have lawyers. The Clinic may be able to provide Mr. Collins with advice in connection with this case. The Pro Se Law Clinic is run by a private organization called the City Bar Justice Center; it is not part of, or run by, the Court (and, among other things, therefore cannot accept filings on behalf of the Court, which must still be made by any unrepresented party through the Pro Se

1 In the alternative, the Court’s Individual Rules and Practices provide instructions for delivering communications to the Pro Se Intake Unit by hand. Additionally, as noted in the Court’s Individual Rules and Practices, a pro se party may move for leave to participate as an ECF filer; if granted leave, the pro se party can file documents on ECF. Intake Unit). The Clinic is located in the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York. Under normal circumstances, the Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. An unrepresented party can make an appointment by visiting the Clinic’s website at https:/Awww.nysd.uscourts. gov/attorney/legal-assistance or by calling (212) 382-4794. If this case has been settled or otherwise terminated, counsel and any pro se party are not required to submit such letters or to appear, provided that a stipulation of discontinuance, voluntary dismissal, or other proof of termination is filed on the docket prior to the date of the conference, using the appropriate ECF Filing Event. See SDNY ECF Rules & Instructions §§ 13.17-13.19 & App’x A, available at http://nysd.uscourts.gov/ecf_filing.php. In accordance with the Court’s Individual Rules and Practices in Civil Pro Se Cases, requests for an extension or adjournment made by counsel with access to ECF may be made only by letter-motion filed on ECF. Requests for an extension or an adjournment made by a pro se party may be made by letter. All such requests must be received at least 48 hours before the deadline or conference. The written submission must state (1) the original date(s); (2) the number of previous requests for adjournment or extension; (3) whether these previous requests were granted or denied; (4) whether the adversary consents and, if not, the reasons given by the adversary for refusing to consent; and (5) the date of the parties’ next scheduled appearance before the Court. Unless counsel and any pro se party are notified that the conference has been adjourned, it will be held as scheduled. SO ORDERED. Dated: January 8, 2025 New York, New York

JEANNETTE A. VARGAS ~~ United States District Judge

INDIVIDUAL RULES AND PRACTICES IN CIVIL PRO SE CASES Honorable Jeannette A. Vargas, United States District Judge

Pro Se Office United States District Court Southern District of New York Daniel Patrick Moynihan Courthouse 500 Pearl Street, Room 250 New York, NY 10007 (212) 805-0175 prose@nysd.uscourts.gov

Unless otherwise ordered by the Court, these Individual Rules apply to all civil cases involving pro se litigants (that is, litigants without counsel) before Judge Vargas. 1. Communications with Chambers A. Telephone Calls by a Pro Se Party. Pro se parties may not call the Court directly; any questions should be directed to the Pro Se Office at (212) 805-0175. B. Written Communications By a Pro Se Party. All communications with the Court by a pro se party should be in writing and delivered in person, mailed, or emailed to the Pro Se Office following the instructions in Paragraph 2(B) below. No documents or court filings may be sent directly to Chambers. Unless the Court orders otherwise, all communications with the Court will be docketed upon receipt; such docketing shall constitute service on any user of the ECF system. If any other party is not a user of the ECF system (e.g., if there is another pro se party in the case), a pro se party must send copies of any filing to that party and include an Affidavit of Service or other statement affirming that it has done so. Copies of correspondence between a pro se party and opposing parties shall not be sent to the Court. C. Contact Information. Pro se parties are required to maintain their current mailing address on the docket at all times and must notify the Court of any change of address by filing a change of address form with the Pro Se Office. D. Communications by Parties Represented by Counsel. Except as otherwise provided below, communications with the Court by a represented party shall be governed by Judge Vargas’s Individual Practices in Civil Cases, available at https://www.nysd.uscourts.gov/hon-jeannette-vargas. E. Docketing of Communications with the Court. Absent a request to file a communication with the Court under seal, the Court will docket any substantive communication with the Court on ECF, a publicly accessible database. F. Requests for Rescheduling a Conference or Extensions of Time. All requests to reschedule a conference or extend a deadline must be made in writing and must state: (1) the original date(s) of the conference or deadline; (2) the reasons for the requested extension; (3) whether the other party or parties consent and, if not, the reasons given for refusing to consent; and (4) the date of the next scheduled appearance before the Court as well as any other existing deadlines. Requests for extensions of deadlines regarding a matter that has been referred to a Magistrate Judge shall be addressed to that assigned Magistrate Judge. Absent an emergency, any request for an extension or to reschedule a conference must be made at least 48 hours prior to the deadline or scheduled appearance. 2. Filing of Papers and Service A. Consent to Receive Electronic Service. To ensure timely service of documents, including Court Orders, non-incarcerated pro se parties are encouraged to consent to receive electronic service through the ECF System. To do so, a pro se party should review the instructions and then submit a Consent to Electronic Service (both available at https://www.nysd.uscourts.gov/forms/consent-electronic-service-pro-se- cases). B. Papers Filed by a Pro Se Party. A pro se party may file papers with the Court by: i. delivering them in person or mailing them to the Pro Se Office, Daniel Patrick Moynihan Courthouse, 500 Pearl Street, Room 250, New York, New York 10007; ii. emailing them as an attachment in PDF format to prose@nysd.uscourts.gov, in which case the pro se party should follow the instructions contained in the April 1, 2020 Addendum to the Court’s ECF Rules & Instructions, available at https://www.nysd.uscourts.gov/electronic-case-filing; or iii. filing them on the ECF System if the pro se party has filed a motion to participate in ECF (available at https://nysd.uscourts.gov/forms/motion-permission-electronic- case-filing-pro-se-cases and in the Pro Se Office) and been granted such permission by the Court. C. Service on a Pro Se Party. Absent a pro se party consenting to receipt of electronic service, counsel in pro se cases must serve a pro se party with a paper copy of any document that is filed electronically and must file with the Court a separate Affidavit of Service. Submissions filed without proof of service that the pro se party was served will not be considered. D. Sensitive Information. Unless relevant to the case, parties must not include in submissions to the Court (1) social security numbers; (2) names of minor children; (3) dates of birth; (4) financial account numbers; or (5) home addresses. Pro se parties wishing to file a document already containing this information must submit a redacted version to the Pro Se Office. If this information is relevant to the case, the filing party must request permission from the Court prior to filing and explain why the information needs to be included. More information regarding the Southern District’s privacy policy is available at https://nysd.uscourts.gov/privacy-policy. E. Redactions and Filing Under Seal. In limited circumstances, the Court may grant leave to a party to either redact information other than the sensitive information described in the preceding paragraph, or to file a document under seal. Information contained in a redacted or sealed document authorized by the Court is generally made available to the other parties in the case. Counseled litigants should adhere to the procedures set forth in the Court’s Individual Rules and Practices in Civil Cases (https://www.nysd.uscourts.gov/hon-jeannette- vargas). Pro se litigants should submit a letter-motion to the Court if they would like permission to redact or seal information other than the categories listed in Paragraph 2.D. 3. Discovery A. Discovery Requests. All requests for discovery by a pro se party should be sent to counsel for the party from whom discovery is sought. Discovery requests should not be sent to the Court or filed on ECF. B. Discovery Disputes. If there are any discovery disputes, the parties are required to confer with one another in an effort to resolve the dispute without the need for Court intervention. If the parties are unable to resolve their dispute, either party may file a letter-motion, no longer than four pages and in accordance with Section 1 above, explaining the nature of the dispute and requesting an informal conference. If the opposing party wishes to respond to the letter, it must promptly file a responsive letter, not to exceed four pages. 4. Motions A. Filing and Service. Unless otherwise ordered by the Court, papers filed in opposition to a motion must be served and filed within 30 days of service of the motion papers, and reply papers, if any, must be served and filed within two weeks of receipt of opposition papers. B. Pro Se Notices. Parties who file a motion to dismiss, a motion for judgment on the pleadings, or a motion for summary judgment must provide the pro se party with a copy of the notices required under Local Civil Rules 12.1 or 56.2. C. Copies of Briefs and Authority. Parties filing any dispositive motions must provide incarcerated pro se parties with a copy of their supporting brief and copies of any caselaw or authority cited therein. The movant must also provide copies of the same upon request by non- incarcerated pro se parties. D. Special Rule for Summary Judgment Motions. With respect to any deposition that is supplied in connection with a summary judgment motion, the index to the deposition should be included if it is available. E. No Courtesy Copies. Parties should not submit courtesy hard copies of any submissions in pro se cases. 5. Conferences A. Notice and Scheduling. Notices scheduling a court conference will be docketed on ECF and mailed to the pro se party or parties. Conferences may be held remotely or in person at the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York 10007. B. Telephone and Video Conference (“Remote Conferences”). Unless otherwise ordered by the Court, any Remote Conference will be held via a Microsoft Teams meeting organized by the Court. The following procedures shall apply to all Remote Conferences: i. Prior to the Remote Conference, the Court will issue an Order with instructions regarding how to join the Microsoft Teams meeting. ii. Persons in attendance who will not be speaking must have their videos off and be muted for the duration of the conference. iii. If the pro se litigant or counsel joins the Remote Conference by audio-only, pro se litigant or counsel should dial-in using a landline whenever possible, should use a headset or handset instead of speakerphone, and must mute themselves whenever they are not speaking to eliminate background noise. To facilitate the creation of an accurate transcript if the conference is held on the record, the pro se litigant or counsel who are joining the conference audio-only are required to identify themselves every time they speak. The pro se litigant or counsel should spell any proper names for the court reporter. The pro se litigant or counsel should also take special care not to interrupt or speak over one another. iv. The broadcasting or recording of any court conference is prohibited by law. C. Incarcerated Parties. An incarcerated party may not be able to attend scheduled in-person conferences but may be able to participate by telephone. If an incarcerated party is unable to participate by telephone, a family member or a representative may attend or otherwise participate in the conference. In such instances, the incarcerated party may write to the Court in advance of the conference regarding any issue the pro se party wishes to have addressed at the conference. If a representative is designated, that representative should contact Chambers at (212) 805-0210 to determine the location of the conference. The Court will also have a transcript of the conference sent to the incarcerated party. If an incarcerated party does not have counsel and a representative cannot attend a conference, the pro se party should write to the Judge regarding any issue the pro se party wishes to have addressed at the conference. 6. Trial Documents A. Pretrial Statement. Unless otherwise ordered by the Court, within 30 days of the completion of all discovery or, if a summary judgment motion is filed, within 30 days of the Court’s ruling on summary judgment, the plaintiff in a pro se case shall file a concise, written Pretrial Statement. This Statement must contain the following: i. a statement of the facts the plaintiff hopes to prove at trial; ii. a list of all documents or other physical objects that the plaintiff plans to put into evidence at trial; and iii. a list of the names and addresses of all witnesses the plaintiff intends to have testify at trial. The Statement must be sworn by the plaintiff to be true and accurate based on the facts known by the plaintiff. If pro se, the plaintiff shall file an original of this Statement with the Pro Se Office. Two weeks after service of the plaintiff’s Statement, the defendant must file and serve a similar Statement of its case containing the same information. B. Other Pretrial Filings i. Without a Jury. If the case is to be tried before only a judge without a jury, any parties represented by counsel must also file proposed findings of fact and conclusions of law at the time of filing the Pretrial Statement. At the time of filing, a represented party should e-mail this document to the Court at VargasNYSDChambers@nysd.uscourts.gov, in Microsoft Word format. The pro se party may also file such document, but is not required to do so and need not submit it by email. ii. With a Jury. If the case is to be tried before a jury, any parties represented by counsel must also file proposed voir dire questions, a proposed jury charge, and a proposed verdict form at the time of filing the Pretrial Statement. At the time of filing, a represented party should e-mail these documents to the Court at VargasNYSDChambers@nysd.uscourts.gov, in Microsoft Word format. The pro se party may also file such documents, but is not required to do so and need not submit them by email. 7. Resources for Pro Se Parties A. Court Website. Pro se parties are directed to the Court’s website (https://www.nysd.uscourts.gov/prose/role-of-the-prose-intake- unit/contact) for other important information concerning proceeding pro se in this Court. B. Pro Se Clinic. There is a Pro Se Law Clinic in this District to assist parties in civil cases who do not have lawyers. The Clinic may be able to provide a pro se litigant with advice in connection with his or her case. The Pro Se Law Clinic is run by a private organization; it is not part of, or run by, the Court (and, among other things, therefore cannot accept filings on behalf of the Court, which must still be made by any unrepresented party through the Pro Se Intake Unit). The Clinic is located in the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York, in Room LL22, which is just inside the Pearl Street entrance to that Courthouse. Under normal circumstances, the Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. An unrepresented party can make an appointment by visiting the Clinic’s website at https://www.nysd.uscourts.gov/attorney/legal-assistance or by calling (212) 659-6190. C. ChatGPT. The Court is aware that some pro se litigants will use ChatGPT to assist them with court filings. Those considering using ChatGPT should be mindful that while the tool can assist with grammar, clarity, and general writing, it is not a substitute for legal counsel and is not always reliable. ChatGPT has been known to provide fake case law or false information. Pro se litigants are strongly encouraged to “check their work” and to verify the information and legal citations that ChatGPT provides. “| Stefi \\ UNITED STATES DISTRICT COURT ies CP) SOUTHERN DISTRICT OF NEW YORK A BLY

This guide is intended to be a summary of basic discovery procedures. The statements in this guide do not constitute legal advice and may not be cited as legal authority. This guide does not take the place of the Federal Rules of Civil Procedure, this court’s local rules, or the individual practices and orders of the judges of this court. Parties using this guide remain responsible for complying with all applicable rules of procedure.

Introduction to Discovery What is discovery? e Discovery is the process through which the parties exchange information that may be helpful to prove their claims or defenses. e The discovery process is governed by Federal Rules of Civil Procedure 26-37, 45, and the court’s Local Civil Rules. e Discovery generally begins after the defendant files an answer, the parties hold a discovery planning conference, and the judge issues a scheduling order. e The discovery process is designed to go forward between the parties with minimal court involvement. Discovery issues should only be raised with the court if the parties have a dispute and cannot resolve the disagreement themselves. e This packet will discuss the different discovery methods. e Although many of the instructions below refer to “you,” the requirements described apply to all parties. How do I serve discovery requests and responses? e A discovery request or response can be served by any method described in Federal Rule of Civil Procedure 5(b), including: o by mailing it o by handing it to the person o by leaving it at the person’s office with a clerk or person in charge, or o by emailing it, if the parties have agreed to exchanging documents by email. e To serve a discovery request on a nonparty (where permissible), you must follow the procedures in Federal Rule of Civil Procedure 45.

500 PEARL STREET | NEw York, NY 10007 300 QUARROPAS STREET | WHITE PLAINS, NY 10601

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e You must sign your discovery requests and responses and include your name, address, phone number, and email address (if available). Do I have to file discovery requests or responses with the court? e No. Federal Rule of Civil Procedure 5 and Local Civil Rule 5.1 state that discovery documents should not be filed with the court unless the judge requires the parties to file them. What are initial mandatory disclosures? (Rule 26(a)) e There is certain information that the parties must share with each other once a lawsuit has been filed, even before the other party requests it. Within 14 days after your discovery planning conference with your adversary, each party must provide to the other party: o The name, address, and phone number of anyone likely to have discoverable information that the party may use to support a claim or defense o Acopy ora description (including category and location) of all documents, electronically stored information, and tangible things that the party has and may use to support a claim or defense o Acalculation of each category of damages the party is claiming and the documents or materials on which the calculation is based o Any insurance agreement the party may have that may pay any judgment against it or that may indemnify or reimburse for payments made to satisfy the judgment. e There are certain types of cases that are exempt from these initial disclosures. For example, if you are currently incarcerated, these disclosures are not automatically required in your case. Refer to Federal Rule of Civil Procedure 26(a)(1)(B) to see if your case falls into a category that is exempt. What if I am currently incarcerated? e Local Civil Rule 33.2 - which applies to prisoner cases in which the plaintiff does not have a lawyer and alleges (1) use of force; (2) inmate-against-inmate assault; or (3) disciplinary due process violations where the punishment was confinement in the segregated housing unit for more than 100 days — requires defendants to automatically provide certain discovery to the plaintiff. e The defendants must disclose the required information and documents within 120 days of when the complaint is served.

hea United States District Court, S.D.N.Y. oy Discovery Page 3 What else must the parties disclose? e Ifa party plans to call an expert witness, the party must provide an expert report that includes, among other things, a complete statement of all opinions the expert will express. See Fed. R. Civ. P. 26 (a)(2). e If your case proceeds to trial, there is additional information that the parties will have to disclose, such as the identity of any witnesses they plan to call at trial. The judge will issue an order describing and setting a schedule for these pretrial disclosures. What is the scope of discovery? (Rule 26(b)) e Unless the judge sets other limits, parties may obtain discovery regarding any nonprivileged matter o that is relevant to a claim or defense of any party, and o is proportional to the needs of the case, considering e the importance of the issues at stake in the case e the amount in controversy in the case * your access to information relative to your adversary and your resources e the importance of the discovery in resolving the issues, and e whether the burden and expense of the proposed discovery outweighs its likely benefit. What are the limits on discovery? (Rule 26(b)) e The court may impose further limits on discovery, because, for example: o the discovery seeks information already provided or available from a more convenient and less expensive source othe party seeking the discovery has already had a chance to obtain the information o the discovery seeks documents and tangible things prepared for trial, or o the information requested is privileged, for example, due to the attorney-client or doctor-patient privilege, or is protected by confidentiality agreements. What if the parties have a disagreement about discovery? e Disagreements about discovery are not uncommon. All parties must conduct discovery in good faith. This means that they must attempt to resolve disputes between themselves, for example, by discussing the matters in a telephone call, before seeking assistance from the judge.

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e If the parties are unable to resolve discovery disputes after making good faith efforts to do so, it may be necessary to seek the judge’s intervention. e If you are not able to resolve discovery disputes by discussing them with the other side, Local Civil Rule 37.2 requires that you request a conference with the judge. You do this by writing a letter to the judge and delivering or mailing the letter to the Pro Se Intake Unit (the courthouse addresses are on the front page of this document). Pretrial Conferences e The judge may schedule a number of pretrial conferences in your case. e Once the defendant has filed an answer to the complaint, or after there has been a decision on a motion to dismiss the complaint, the judge may schedule an initial case management conference, also known as a Rule 16 conference or scheduling conference. e A pretrial conference typically is held in the judge’s courtroom with the parties or their lawyers present. In prisoner cases or cases where a party does not live in the area, the conference may be held by telephone or videoconference. e At the conference, the parties and the judge will discuss and resolve scheduling or discovery issues or other matters. e Scheduling of conferences is not automatic; it is up to the judge whether and when to hold conferences. e Later pretrial conferences may be held to deal with changes to the schedule, to try to settle the case, to resolve discovery disputes, or to discuss a plan for trial. The Initial Case Management Conference (Rule 16) e The initial case management conference often is the first opportunity for you and opposing counsel to meet with the judge and briefly describe the nature of your claims and the defendant’s defenses. The judge will discuss discovery and the parties’ discovery plan (if there is one), and whether the case can be settled at an early date. Opposing counsel may contact you to discuss a plan for discovery. This is because, except in certain types of cases (for example, where the plaintiff is incarcerated and does not have an attorney), Federal Rule of Civil Procedure 26(f) requires that you and the other parties to your case hold a conference to make a plan for discovery. e This conference, which may be by telephone, must be held as soon as possible, but at least 21 days before the court is to hold an initial case management conference or a scheduling order is due. See Fed. R. Civ. P. 16.

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e After the parties have their discovery conference, they must submit an outline of their proposed discovery plan to the court. e At the initial case management conference, the parties and the judge will discuss a plan for discovery. At or after the conference, the judge will likely enter a scheduling order setting deadlines for amendment of the pleadings, motions, and the completion of discovery. Conduct at All Conferences e When attending a conference, all parties should show respect for the judge by dressing neatly and being on time. A conference may be held in the courtroom or in a conference room. e If the conference is held in the courtroom, the judge will sit on the bench and the parties will sit at the tables. The judge’s deputy clerk will tell you where to sit. e Whenever you speak to the judge, you should stand, unless the judge says otherwise. It is customary to refer to the judge as “Your Honor.” Interrogatories (Rule 33) What are interrogatories? e Interrogatories are written questions that the parties may serve on each other to help them learn information about the case. e Federal Rule of Civil Procedure 33 and Local Civil Rules 33.2 and 33.3 explain the requirements for interrogatories. To whom can I direct interrogatories? e You may serve interrogatories only on parties to the litigation. How much does it cost to serve interrogatories? e The only cost is the cost of drafting and serving the questions on the party. What types of questions can I ask? e The purpose of your interrogatories should be to uncover evidence for your case. e Under Local Civil Rule 33.3, at the beginning of discovery, interrogatories may only be used to find out: o the names of witnesses who may have information about the case o the value of damages alleged othe existence of documents relating to the case, or

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othe existence of physical evidence. Do I need the judge’s permission to serve interrogatories? e Generally, no, but you would need to ask the judge’s permission: o toask a party to answer more than 25 interrogatories, or o to serve interrogatories at the beginning of discovery that are outside the scope of the four categories listed above. Do my interrogatories need to be in a particular format? e Your interrogatories should be in a numbered list. How do I respond to interrogatories? e You have 30 days to respond to interrogatories, but you may ask the other party for more time. If the other party declines, you may write to the judge to ask for an extension of time. e You must answer each interrogatory separately and fully in writing and under oath. e If you have an objection to an interrogatory, you must explain it in writing. If you object only to part of the interrogatory, you must respond to the other part. e If you do not understand what is being asked, you should first try to discuss it with the other party, rather than objecting or writing to the judge. e Ifthe other party believes that your objection is incorrect or unreasonable, that party may ask the judge to order you to respond. What if I am not sure of the answer to an interrogatory? e You must answer an interrogatory to the best of your ability with all the information available to you. e You must look for the answer to an interrogatory if it can be found in your records or some other available place. e Itis inappropriate to answer “I don’t know” to an interrogatory if the information needed to answer the question is available to you. What if I want to change my answer after I have responded to an interrogatory? e If you learn something new that would change your response to an interrogatory, you must let the other party know. e You should send a letter amending your answer to include the new information. Your amended answer, like your original response, must be under oath.

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Requests for Production of Documents (Rule 34) What is a Request for Production of Documents? e Requests for production of documents allow you to obtain or inspect documents, electronically stored information, or tangible objects relevant to your case. On whom can I serve document requests? e¢ Document requests can be served on anyone, not just parties to the lawsuit. e Federal Rule of Civil Procedure 34 explains the requirements for document requests to be served on parties to the lawsuit. Federal Rule of Civil Procedure 45 explains the requirements for service on nonparties. What types of information can I obtain or inspect through a document request? e Designated documents or electronically stored information — including writings, drawings, charts, photographs, images, etc. e Any designated tangible things (for you to inspect, copy, test, or sample), including physical objects that are not documents, or e Property (for you to inspect, photograph, or measure). How much does it cost to serve a request for production of documents? e To serve a party to the lawsuit, the only cost is that of drafting and serving the request. e There will be costs to serve a nonparty. See Fed. R. Civ. P. 45. Do my requests for document production need to be in a particular format? e Your requests should be in a numbered list. How long do I have to respond to document requests? e You have 30 days to serve a written response to document requests, but you may ask the other party for more time. If the other party declines, you may write to the judge to ask for an extension of time. e You must produce the requested documents either at the time stated in the request or at another reasonable time that you specify in your response. In what form do I produce the requested documents? e You must produce the documents in the form in which they are ordinarily maintained, or in reasonable usable form, unless otherwise specified in the request.

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e You should organize and label the documents to correspond with the categories in the request. Do I have to produce all of the requested documents? e You must respond in writing to every individual document request. You can either produce the document or object to the request. e You can object to part of a request, or the full request, but you must state a specific reason for each objection. Do I have to turn over medical or arrest records? e your physical or mental condition is at issue in the lawsuit, or if your criminal history is at issue, you may be required to produce, or authorize release of, your medical records or arrest records. Depositions (Rules 27-32) What is a deposition and how does it work? e A deposition is a procedure used to get the testimony of a party or nonparty witness before trial. e Depositions are conducted in a question-and-answer format and are generally recorded by a stenographer or by electronic means. e The deponent (the person who is being deposed) answers questions under oath, meaning that he swears or affirms that all of his answers are true. Do parties need the judge’s permission to take a deposition? e Each party is allowed to take up to ten depositions without the judge’s permission. e A party generally does not need the judge’s permission to take a deposition, except when: o the deponent is in prison othe party has already taken ten depositions o the deponent has already been deposed in the same case, or o the party wants to take the deposition before the pretrial discovery conference. How do [| arrange for a deposition? e First, consult with the attorneys for the other parties to choose a convenient time and location for the deposition. Then, serve a notice of deposition on all the parties to the suit and the deponent within a reasonable time before the deposition is scheduled.

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e You must arrange a location to take a deposition, hire a court reporter or someone authorized to administer oaths and take testimony, and arrange for an interpreter if one is necessary. e You are responsible for making sure the deposition is recorded and determining the method for recording the deposition. The deposition can be recorded by any method as long as the deponent is sworn in, but it is usually recorded by means of stenograph, audiotape, videotape, or tape recorder. You are responsible for paying the cost of the recording. e □ deposition can be taken by telephone or other remote means if the parties agree or if the court orders it. e You may take a deposition at the courthouse. You may also arrange for the court to provide recording equipment. To make the arrangements, contact the Pro Se Intake Unit. How much will it cost to depose someone? e Depositions can be expensive because you need to pay the court reporter or person who will administer the oath as well as a translator if one is necessary. e Ifyou plan to use the deposition testimony as evidence, you will also need to pay for the recording of the deposition to be transcribed. The transcription could cost around $4 per page. The transcript for an hour-long deposition may consist of around 35-45 pages. If you took a deposition that lasted four hours with a court reporter, the cost could be approximately $1,000. What does a notice of deposition have to include? e The notice of the deposition must state the time and place of the deposition, and if known, the deponent’s name and address. e If you do not know the deponent’s name and address, you must provide a general description sufficient to identify the person. e You must also state the method for recording the testimony. When do I need to get a subpoena for a deposition? e Ifyou want to depose anonparty to the lawsuit, you must first request a subpoena from the Pro Se Intake Unit. You will be required to serve the subpoena and pay witness fees and reasonable travel expenses. See Fed. R. Civ. P. 45. How long can a deposition last? e A deposition is limited to one day of seven hours. If a deposition will last more than seven hours, you must get permission from the judge.

hea United States District Court, S.D.N.Y. oy Discovery Page 10 What can I ask at a deposition? e Generally, you may ask questions about matters that are relevant to any party’s claims or defenses. Does the deponent have to answer all of the questions? e Generally, the deponent has to answer all of the questions. e The deponent may make an objection during the deposition, but his testimony must still be taken and the objection will later be reviewed by the judge. A deponent may refuse to answer a question in only two situations: o to preserve a privilege such as the attorney-client privilege or doctor-patient privilege, or o when the judge has already ordered that the question does not need to be answered. e If there is a dispute about what can be asked, it may be necessary to call the judge to ask for a ruling. Can the deponent change his or her testimony after the deposition? e The deponent has 30 days after being notified that the transcript or recording is available to review the transcript. e Ifthe deponent would like changes to be made, he can sign a statement listing those changes and the statement will be attached to the deposition transcript, but the original transcript will not be changed. What if I can’t take a deposition because I am incarcerated or because it is too expensive? e If you cannot appear at a deposition or you cannot afford to take one, you may use interrogatories to get answers to questions from a party to the case or an employee of the party. e You may also ask the judge about alternative procedures that may be available. Requests for Admission (Rule 36 and Rule 37) What is a request for admission? e Inarequest for admission, one party asks another party to agree to the truth of specified facts or to the genuineness of specified documents.

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e Ifboth parties admit to the truth of a fact or validity of a document, the court will treat that fact or document as true for the rest of the litigation process. An admission in a particular lawsuit cannot be used as an admission in a different lawsuit. e Requests for admission are often most useful near the end of the discovery period, when they can help narrow the issues for trial. What can I request admission to? e Facts — for example, that Officers Brown and James were present at the incident e The law that applies to a fact — for example, that Officers Brown and James are state actors e The authenticity of documents — for example, that a document is the police report filed by Officers Brown and James relating to the incident Are there matters that are not appropriate for requests for admission? e Yes. You should not ask other parties to admit to matters that you know are disputed. For example, you should not ask the defendant to admit “that Officer Brown beat me up.” How many requests for admission can I serve? e The rules do not limit the number of admissions you may request. Admissions from both parties can help speed up the litigation process and make it easier to submit documents into evidence. But requests for admission should be made in good faith and should not be so numerous as to be unduly burdensome to the opposing party. Do my requests for admission need to be in a particular format? e Your requests should be in a numbered list. How do I respond to a request for admission? e You have 30 days to serve a written response to a request for admission, but you may ask the other party for more time. If the other party declines, you may write to the judge to ask for an extension of time. e You may admit the matter, specifically deny it, or state in detail why you cannot truthfully admit or deny it. You may also specify that you admit one part and deny or qualify the rest. e You must state the grounds for objecting to a request.

hea United States District Court, S.D.N.Y. oy Discovery Page 12 What happens if I do not respond to a request for admission? e Ifyou do not respond to a request for admission within the time frame, the matter will be considered admitted. What happens if I deny a request for admission? e You may deny requests for admissions that you do not believe to be true. e Ifthe other party later proves that the fact is true or the document is authentic, that party may make a motion, seeking reasonable expenses, including attorney’s fees, that resulted from proving the matter. The judge must grant the motion unless: o the request was objectionable o the admission sought was not important o the party who did not admit had reason to believe they might prevail on that matter; or o there was other good reason for the failure to admit. Physical and Mental Examinations (Rule 35) Can I be required to submit to a physical or mental examination? e If your physical or mental condition is at issue in the lawsuit, the court might order you to submit to a physical or mental examination. This might occur, for example, if you claim that the other party caused you physical injury or emotional harm. Who pays for the physical or mental examination? e The party that requests the examination must pay for it. You will not have to pay for the examination if the other party asks for it. Do I have to submit to an examination, if asked? e Acourt order is required for a mental or physical examination, unless the parties agree to the examination without an order. If you do not agree to an examination, the other party can make a motion, asking the judge to order you to submit to one. e If you have been ordered to submit to an examination and you have questions about the procedure, you should write to the judge.