DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 5 13/2024 CARMAN WILLIAMS, Plaintiff, OPINION AND ORDER ON DISCOVERY MOTIONS -against- 23-CV-5460 (AS) (KHP) NYC BOARD OF ELECTIONS, et al., Defendants.
KATHARINE H. PARKER, United States Magistrate Judge.
Presently before the Court? are several discovery motions and issues raised by the parties. (ECF Nos. 53, 63, 68, 73, 74, 76, 77, 78.) The Court is satisfied that it has sufficient information from the written submissions to resolve the issues without the need for a conference and addresses them below:
BACKGROUND
Plaintiff Carman Williams, who is proceeding pro se, brings this action against the New York City Board of Elections (“BOE”), its General Counsel Hemalee Patel, Donna Ellaby, an administrator at the BOE, Carol Winer, an employee of the BOE (collectively the “Defendants” or the “BOE Defendants”), and Reshma Patel, a volunteer District Leader for the 74** Assembly District. Williams alleges that Defendants illegally retaliated against her for complaining about perceived racism against her by Ellaby in violation of Title VII of the Civil Rights Act of 1964 (“Title VII’), 42 U.S.C. § 1983, the New York State Human Rights Law, and the New York City
1 Plaintiff has on multiple occasions addressed the undersigned as “Magistrate” via letter. The correct title is Magistrate Judge. See United States Magistrate Judges, FMJA, https://ctd.uscourts.gov/sites/default/files/FMJA%20Brochure.pdf (last visited May 9, 2024).
Human Rights Law. She also alleges that Hemalee Patel commited libel per se when making statements about her in a submission to the New York State Division of Human Rights (“NYSDHR”) in response to Plain�ff’s retalia�on charge.
Plain�ff worked as a poll worker in New York City for many years. In early 2022, Plain�ff wrote to Debra Leibele, Director of Elec�on Day Opera�ons for the BOE, expressing her desire to work as a poll worker during June 2022 early vo�ng. Plain�ff was directed to contact Defendant Ellaby, then Early Vo�ng Supervisor for Manhatan. On or about May 31, 2022,
having not heard from Ellaby, Plain�ff sent an email to Leibele complaining that she had not heard from Ellaby and asser�ng that Ellaby was a “racist” and retalia�ng against Plain�ff. On June 1, 2022, Ellaby denied Plain�ff’s request to work during early vo�ng due to having received a report of Plain�ff’s poor work performance. However, Ellaby indicated that
Plain�ff was s�ll eligible to work as a poll worker and indicated that Plain�ff could work on June 28 and August 23. Plain�ff therea�er filed a complaint with the NYSDHR complaining she had been unlawfully retaliated against. The BOE responded to the complaint and explained that the
reason Plain�ff had not been assigned to early vo�ng was a record of unsa�sfactory performance. That complaint was administra�vely terminated at Plain�ff’s request so she could pursue this ac�on in federal court. Defendants have moved to dismiss the complaint for failure to state a claim. Among
other things, Defendants argue that there is no individual liability under Title VII, that the complaint fails to allege facts showing any ac�onable conduct of Hemalee Patel and Carol Winer, and that the libel claim against Hemalee Patel is barred by absolute privilege. That mo�on is pending. Defendant Reshma Patel, who is pro se, has moved to dismiss on the ground that the complaint states no facts relevant to her and that she is not employed by the BOE and
does not know Williams or anything about the issues in this case. DISCOVERY MOTIONS
The BOE Defendants have moved to stay discovery pending the outcome of their mo�on to dismiss on the ground that resolu�on of the mo�on may obviate the need for discovery or at least much of the discovery sought by Plain�ff. The BOE Defendants also have moved to compel Plain�ff’s deposi�on because Plain�ff has failed to respond to requests to schedule her deposi�on. The BOE Defendants also complain that Plain�ff has failed to engage in meet and confers, ignored emails or falsely contended that she did not receive documents that were
mailed or emailed to her and that Plain�ff has blocked emails from defense counsel. Plain�ff has moved to compel responses to her First and Second Requests for Produc�on served on the BOE Defendants, an extension of the discovery schedule, preclusion of the BOE Defendants’ use of documents not produced in discovery in any mo�on or at trial, and an
updated privilege log due to perceived deficiencies of the log. Plain�ff contends that meet and confers are fu�le due to an�pathy between the par�es. The Court addresses these issues below. 1. Plain�ff’s Deposi�on Based on the Court’s review of the leters submited, the Court can resolve the issue of
Plain�ff’s deposi�on without a conference. It is evident that Plain�ff has willfully refused to schedule her deposi�on and ignored defense counsel’s requests to schedule it. Plain�ff shall appear for her deposi�on on May 22, 2024. The deposi�on shall take place at the U.S. Courthouse located at 40 Foley Square, New York, New York in Media�on Room 9 commencing
at 10:00 a.m. Defendants are permited up to 7 hours of ques�oning under the Federal Rules. The failure of Plain�ff to appear for her deposi�on will result in sanc�ons. 2. Defendants’ Privilege Log Plain�ff complains that the privilege log produced by Defendants is insufficient. The BOE Defendants provided Plain�ff with a categorical privilege log indica�ng that they were
withholding emails “submited by Carman Williams threatening li�ga�on against NYC Board of Elec�ons.” They do not provide a date range for the emails or indicate authors or recipients or whether the emails were for the purpose of seeking or providing legal advice. Categorical privilege logs are permited in this District. However, the log is s�ll deficient. To start, any email that Williams sent to the BOE is not privileged. To the extent that a Williams email threatening li�ga�on was forwarded to others within the BOE in connec�on with requests seeking legal
advice or providing legal advice, those later communica�ons would be subject to the atorney- client privilege. Accordingly, by the close of discovery, the BOE Defendants shall provide Plain�ff with an updated privilege log that includes the date ranges of the emails referenced in the log, the authors and recipients of the emails, and indica�ng whether any of the authors or recipients are atorneys. To the extent that non-privileged por�ons of the emails can be segregated and produced, the emails shall be produced to Plain�ff in a redacted form with the
privileged por�ons of the email thread redacted. The BOE Defendants are not required to provide a privilege log as to privileged communica�ons that post-date the filing of the NYSDHR Charge or a privilege log as to documents responsive to Plain�ff’s document requests that the Court has stricken in whole or in part as set forth below. Addi�onally, by the close of discovery, the BOE Defendants shall confirm that there are no other documents being withheld on the
basis of privilege. 3. Use of Documents on a Mo�on or At Trial In her mo�on to compel, Plain�ff asks the Court to preclude the BOE Defendants “from u�lizing any documents and records requested but not provided on any mo�on or at trial.” (ECF No. 53.) Although there is no indica�on that the BOE Defendants intend to use withheld
documents to support a mo�on for summary judgment or at trial, the Court clarifies that no party is permited to use documents that have been requested in discovery but not produced, in connec�on with a mo�on for summary judgment or at trial. 4. Plain�ffs’ First and Second Requests for Documents Plain�ff complains that Defendants have not produced documents she requested or ESI. Par�es may obtain discovery regarding any nonprivileged mater that is relevant to any party's
claim or defense and propor�onal to the needs of the case, considering the importance of the issues at stake in the ac�on, the amount in controversy, the par�es’ rela�ve access to relevant informa�on, the par�es’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b).
The party moving to compel discovery “bears the ini�al burden of demonstra�ng that the informa�on sought is relevant and propor�onal.” Sportvision, Inc. v. MLB Advanced Media, L.P., No. 18 Civ. 3025 (PGG) (VF), 2022 WL 2817141, at *1 (S.D.N.Y. July 19, 2022); see also Citizens Union of City of N.Y. v. Attorney General of N.Y., 269 F. Supp. 3d 124, 139 (S.D.N.Y. 2017) (“Plain�ffs, as the par�es seeking discovery from [defendant], bear the ini�al burden of proving that the informa�on and documents sought are relevant and propor�onal to the needs of the
case.”). Once the moving party has made this showing, “the burden shi�s to the opposing party to jus�fy curtailing discovery.” Sportvision, 2022 WL 2817141, at *1. In considering Plain�ff’s mo�on, I also note that Magistrate Judges overseeing discovery have “broad discre�on to manage the discovery process . . .” Emanuel v. Gap, Inc., No. 19-CV-
3617 (PMH), 2020 WL 5995134, at *3 (S.D.N.Y. Oct. 9, 2020). Pursuant to Federal Rule of Civil Procedure 26(b)(2)(C), a court may limit discovery if, inter alia, the discovery sought is unreasonably cumula�ve or the proposed discovery is not relevant or propor�onal to the needs of the case. Addi�onally, when considering Plain�ff’s complaints about Defendants’ compliance with their discovery obliga�ons, I note that Federal Rules of Civil Procedure 26 and 34 require
par�es to conduct a reasonable search for documents that are relevant to the claims and defenses. “The duty to make a ‘reasonable inquiry’ is sa�sfied if the inves�ga�on undertaken by the atorney and the conclusions drawn therefrom are reasonable under the circumstances . . . Ul�mately, what is reasonable is a mater for the court to decide on the totality of the circumstances.” Fed. R. Civ. P. 26 advisory commitee's note to 1983 amendment. With the above preface, I address Plain�ff’s document requests and Defendants’
objec�ons and responses thereto. Plain�ff’s First Set of Document Requests (ECF No. 53) contain 26 requests for documents. They are summarized as follows: 1. Plain�ff’s personnel file 2. All performance reviews of Plain�ff 3. Names of individuals who conducted performance reviews of Plain�ff 4. Copies of all records for the past 5 years detailing poll workers who were moved to “inac�ve” status with BOE and documenta�on and records detailing the basis for being classified “inac�ve” 5. Copies of all emails, memoranda, transcripts, that contain the search term “Carman William” 6. Records and documents of all BOE employees terminated by the Board of Commissioners in the last 5 years and the basis for same. Copies of their reviews, warnings, memoranda, search terms for “disciplinary,” “performance,” “warning,” “lawsuit,” “employment discrimina�on,” “retalia�on” 7. Copies of all employee personnel files of all BOE employees disciplined by the BOE in the past 5 years for the stated reasons of poor performance and/or behavior 8. Copies of personnel files of all BOE employees terminated by the BOE in the past 5 years for the stated reasons of poor performance and/or behavior 9. Performance reviews of all BOE employees at the Hunter-Brookdale polling loca�on for early vo�ng 10/1/2021 – 11/7/2021 10. Copies of all Coordinator Notes for the period from 1/1/2015 through 10/21/2022 11. A complete copy of the BOE Employee Handbook in effect January 1, 2022 through January 31, 2023 12. Memoranda, emails, and documents prepared by your employees/agents detailing criteria for selec�on of Poll Workers for Early Vo�ng from June 1, 2019 to the present 13. Copies of all discrimina�on complaints alleging racial discrimina�on and/or retalia�on by BOE pending before any administra�ve tribunal and/or in court 14. Copies of all Coordinator Notes for the past 5 years from the Andrew Heiskell Library for the Blind by assigned coordinators 15. Copies of performance tracking documents and records created by the Poll Worker Department staff and/or any other designated employees/contractors that reflect the performance of poll workers for the past 3 years inclusive of Early Vo�ng performance reviews 16. Copies of any counseling leters, memos, and warnings issued to Plain�ff by Defendants’ employees/agents from the start of her employment in 2008 to August 31, 2022 17. Copies of any Performance Improvement Plan leters and documents issued by the Defendants to any employees inclusive of per diem employees in the past 5 years from June 1, 2018 through June 1, 2023 18. Defendants’ communica�ons to employees/agents of the Performance Review Procedures/Best Prac�ces, keyword search of emails for “performance review,” “implicit bias,” “race” 19. Dates/�mes/places that Defendants met with or discussed performance or behavior- related concerns and documents and memos detailing said mee�ngs with Poll Workers including, but not limited to, Plain�ff from 1/1/2008 through 1/1/2003 20. Copies of communica�ons to employees/agents regarding protocols to be followed for the reten�on of documents and records per�nent to pending li�ga�on 21. All internal communica�ons between Donna Ellaby, Debra Leibele, Brian Camberber, Lisa Berger, Cynthia Doty, and all Poll Worker department employees from March 1, 2022 through the present regarding “early vo�ng,” “roster,” and “selec�on” 22. Organiza�onal Chart of BOE from 10/1/2021 through the present 23. Copies of Coordinator Job Applica�on/Training Class Materials provided to coordinators detailing job descrip�on, du�es, and purpose of coordinator Poll Site notes for the past 5 years 24. Copies of Plain�ff’s training class exams from 1/1/2008 through 1/31/2023 25. Copies of any complaints from voters at poll sites where the Plain�ff worked from 1/1/2008 through February 1, 2023 26. Copies of memos to Plain�ff, Performance Improvement Plans, etc., or materials apprising Plain�ff of the necessity to improve either her performance or conduct in order to retain employment as a Poll Worker Plain�ff’s Second Set of Document Requests (ECF No. 53) contain an addi�onal 16 requests for documents summarized as follows: 1. All Coordinator Notes from P.S. 116 Early Vo�ng Poll Site for the Ini�al Early Vo�ng period in October 2019. All notes from all 3 coordinators at the site. This includes ESI and metadata for any records 2. Copies of any Performance Reviews from October 2019 Early Vo�ng site at the above-indicated polling site; Copies in whatever format they exist including ESI with metadata 3. Names of all Poll Workers assigned to the site for any of the dates of Early Vo�ng 4. Names of all coordinators at the PS 116 work site for Early Vo�ng 5. Selec�on Roster/Criteria for Early Vo�ng Poll Workers for commencement of Early Vo�ng in New York in October 2019 – including ESI and metadata 6. Copies of any Notes prepared by BOE Staff that visited Early Vo�ng Poll Site in 2019 Vo�ng in New York in October 2019 – including ESI and metadata 7. Tenure with BOE of all Poll Workers who were assigned to the P.S. 116 poll site for Early Vo�ng. Current status of the employees who worked at the site including ESI and metadata 8. Personnel file of Donna Ellaby including any resumes and job applica�ons/promo�on materials along with any complaints about Ellaby including ESI and metadata 9. Personnel file of Joffrey Burger and resumes and job applica�ons/promo�on materials along with any complaints received from any individuals either BOE staff and/or voters about Burger during her tenure with the BOE 10. Personnel file on Carol Winer and any resumes and job applica�ons, including references and performance reviews during her tenure with the BOE 11. Personnel file of Lisa Burger including any resumes and job applica�ons, including references and performance reviews with the BOE. Request includes but is not limited to ESI and metadata 12. Names of all previous employers of Donna Ellaby, Joffree Burger, Carol Winer, and Lisa Burger. Request includes but is not limited to ESI and metadata 13. Copies of any emails origina�ng from any email address u�lized by Carol Winer to the BOE for the past three years including ESI and metadata 14. Copies of any emails from or to Cynthia Doty, including ESI and metadata that contain any of the search terms “Carman Williams” PW #221539, “inac�ve,” “ac�ve” 15. Names of all Poll Workers assigned to Hunter Brookdale, including their posi�on (Poll Worker, Coordinator, etc.) with the BOE, at the �me of their selec�on to work since the site became an Early Vo�ng site 16. Performance reviews of all Poll Workers assigned to Hunter Brookdale from 2021 through 2023 The BOE Defendants have objected to the majority of the requests on grounds of relevance, temporal scope, and propor�onality, and for good reason. This case involves a narrow issue – whether the BOE Defendants retaliated against Plain�ff by refusing to hire her for early vo�ng in June 2022 a�er she complained in May 2022. Yet, Plain�ff seeks documents for a 5+ year period concerning not just her interac�ons with the BOE, but on other poll workers and BOE employees and managers, along with myriad other documents and communica�ons. Much of the informa�on sought is completely irrelevant to the claims and defenses in this case. And, even if some of the informa�on sought is arguably relevant under Rule 26’s broad defini�on of relevance, the breadth of the informa�on sought is simply not propor�onal to the needs of the case considering the damages at issue, the scope of the facts at issue, and the burdens associated with collec�on of all of this informa�on. Notwithstanding their objec�ons, the BOE Defendants conducted a search for documents, subject to their objec�ons. They have represented that they have already produced:
• All correspondence between Plain�ff and Defendants, including correspondence related to the dissolu�on of her work rela�onship with the BOE and the suspension of her privilege to work early vo�ng shi�s • All documents and email communica�ons rela�ng to Plain�ff’s performance including emails concerning internal complaints and assignments • Coordinator journals at the polling sites Plain�ff worked, which include performance- related informa�on about poll workers at those same sites • Dates on which Plain�ff worked • Poll worker records pertaining to Plain�ff • BOE organiza�onal chart • Site coordinator manual • Coordinator job descrip�on
The BOE Defendants have explained that the BOE’s legal department, led by Defendant Hemalee Patel, used search terms “Carman Williams,” “Carman Murray,” and poll worker ID No. “1195370.” However, they did not disclose the custodians whose emails were searched. Addi�onally, Plain�ff points out that the poll worker ID number used is not her number. Taking into account what has already been produced by Defendants, the Court finds that Defendants have sa�sfied their obliga�ons in part, but that certain addi�onal informa�on and documents s�ll must be produced as discussed in more detail below. In reaching the conclusions herein, the Court is mindful that the law requires par�es to conduct a reasonable search. Raine Grp. v. Reign Capital, 2022 WL 538336, *1 (S.D.N.Y. Feb. 22, 2022). Under Rule 26(g), the “duty to make a ‘reasonable inquiry’ is sa�sfied if the inves�ga�on undertaken by the atorney and the conclusions drawn therefrom are reasonable under the circumstances.” Fed. R. Civ. P. 26 advisory committee's note to 1983 amendment. Perfec�on is not the rule, especially with mul�ple sources of ESI, the tendency for there to be mul�ple copies of the same email or near-dupes the produc�on of which has no incremental value to the case but exponen�ally increases the costs of discovery. “Ul�mately, what is reasonable is a mater for the court to
decide on the totality of the circumstances.” Fed. R. Civ. P. 26 advisory commitee's note to 1983 amendment. As to Plain�ff’s First Set of Document Requests, it is the Court’s understanding that the BOE Defendants have already produced documents responsive to Requests 1, 2, 3, 16, and 22,
and no further produc�on will be required as to these requests. Request 5 seeks copies of all emails, memoranda, and transcripts that contain the search term “Carman William”. The BOE Defendants have informed the Court that they conducted a search for all communica�ons concerning Carman Williams using the search term of her name. However, they have not provided the names of custodians whose ESI was searched and appear to have used an
incorrect poll worker number. Defendants shall provide the names of the custodians whose ESI they searched and run a search in such custodians’ ESI with Plain�ff’s correct poll worker number. As to Requests 10 and 14, it is the Court’s understanding that the BOE Defendants produced Coordinator journals at the polling sites where Plain�ff worked, which include performance-related informa�on about poll workers at those same sites. To the extent Requests 10 and 14 seek broader informa�on, they are stricken as overbroad and irrelevant. No
further responses are required to Requests 10 and 14. As to Request 11, the employee handbook applicable to BOE employees in 2022 should be produced. No further response is required to this request. The remaining Requests that the Court has not yet addressed are also overbroad, but the Court narrows them and will require produc�on of the following: • As to Request 12, to the extent not already produced, the BOE Defendants need only produce documents sufficient to describe criteria for hiring poll workers in 2022. • As to Request 23, to the extent not already produced, the BOE Defendants need only
produce job descrip�ons applicable to coordinators in 2022 (which the Court understands was produced) and training materials, if any, given to coordinators in 2022. If no training materials exist, Defendants shall so state in a leter to Plain�ff. • As to Request 25, to the extent not already produced, the BOE Defendants need only produce writen complaints from voters against Plain�ff, if any, made before June 2022.
If none exist, Defendants shall so state in a leter to Plain�ff. • As to Request 26, the BOE Defendants need only produce performance improvement plans that were given to Plain�ff, to the extent they exist. If none exist, Defendants shall so state in a leter to Plain�ff. The BOE Defendants are not required to respond to Request Numbers 4, 6, 7, 8, 9, 13, 15, 17, 18, 19, 20, 21, and 24 because these requests are overbroad, not tailored to the claims and
defenses in the case, seek irrelevant informa�on and are unduly burdensome They also are not propor�onal to the needs of the case. With regard to the Second Set of Document Requests, the BOE Defendants are not required to respond to Request Numbers 2, 3, 6, 7, 9, 10, 11, 12, 13, 15, and 16 because these
requests are overbroad, not tailored to the claims and defenses in the case, seek irrelevant informa�on and are unduly burdensome. The Court notes that some of these requests are redundant of earlier requests and are not propor�onal to the needs of the case. As to Request 1, it is the Court’s understanding that the BOE Defendants produced Coordinator journals at the polling sites where Plain�ff worked. To the extent Request 1 seeks broader informa�on, it is stricken as overbroad and irrelevant. As to Request 5, it is duplica�ve
of Request 12 from Plain�ff’s First Set of Document Requests and therefore no further response is required. The remaining Requests that the Court has not yet addressed are also overbroad, but the Court narrows them and will require produc�on of the following: • As to Request 4, to the extent not already produced, the BOE Defendants need only
produce the names of coordinators that worked at the polling sites where Plain�ff worked in 2022, during the dates Plain�ff worked at such sites. • As to Request 8, to the extent not already produced, the BOE Defendants need only produce writen complaints of race discrimina�on and retalia�on filed against Donna Ellaby between 2020 and 2022 (whether internally with BOE or with a state human rights agency or court). No more is required in response to Request 8. If there are no
such complaints other than the one made by Plain�ff, Defendants shall so state in a leter to Plain�ff. • As to Request 14, to the extent not already produced, the BOE Defendants need only produce emails to or from Cynthia Doty in 2022 that name or discuss or refer to Plain�ff or her Poll Worker ID number.
Further, I previously ordered the BOE Defendants to produce informa�on regarding disciplinary discharges of other poll workers who were supervised by the same individuals who supervised Plain�ff in the two-year period prior to Plain�ff’s last day of employment. It is unclear whether the BOE Defendants have produced such informa�on. The BOE Defendants allege in their opposi�on to Plain�ff’s mo�on to compel that comparisons related to the performance of other poll workers are irrelevant to Plain�ff’s case because Plain�ff has brought a retalia�on claim,
rather than a discrimina�on claim. The Court disagrees. As courts have consistently held, plain�ffs bringing retalia�on claims may use circumstan�al evidence of “disparate treatment of fellow employees who engaged in similar conduct” as evidence of “a causal rela�onship between the protected ac�vity and the adverse employment ac�on.” See Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010). However, the Court has further considered the Defendants’
objec�ons and the claims in the complaint and finds that its prior order should be narrowed/clarified to require produc�on of discharges of other poll workers who were discharged or not hired for disciplinary reasons in the two-year period 2020-2022 to the extent those decisions were made by the people who supervised Plain�ff in 2022 and Defendant Ellaby. The names of the poll workers may be redacted. Defendants shall produce the informa�on set forth herein by May 31, 2024.
Plain�ff has complained that she has received Defendants produc�on in hard paper format and that the BOE Defendants have not produced any ESI, beyond a few emails. Insofar as Plain�ff has refused to accept email communica�ons and has blocked emails from defense counsel, she cannot complain about receiving documents in hard copy format. To the extent
Plain�ff has requested “metadata”, she has not explained what metadata she needs or why she needs it. To the extent Plain�ff complains that she has received copies of only a few emails, addi�onal emails may be produced a�er Defendants conduct a search pursuant to this Order. Alterna�vely, Defendants will state in a leter that a�er conduc�ng such addi�onal search, no further emails were located. The Court also notes that to the extent defense counsel makes representa�ons to the Court about its search for relevant documents, the Court is en�tled to rely on them. See, e.g., Greer v. Carlson, No. 20 Civ. 5484 (LTS) (SDA), 2020 WL 7028922, at *3
(S.D.N.Y. Nov. 29, 2020) ("[Defense] counsel is admited to prac�ce in this Court and is an officer of the Court. If a statement made by counsel is false, he can be subject to discipline. Thus, courts o�en rely upon statements made by counsel.”); Kozak v. Office Depot, Inc., No. 16 Civ. 943 (LJV) (JJM), 2020 WL 12957618, at *2 (W.D.N.Y. June 22, 2020) (relying on defense counsel's representa�on that it had produced all documents responsive to plain�ff's request, as “[t]he
court is en�tled to rely on the representa�ons of counsel, as officers of the court”) (internal cita�ons omited); Mason Tenders Dist. Council of Greater N.Y. v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 42 (S.D.N.Y. 2016) (“Generally, ‘a party's good faith averment that the items sought simply do not exist, or are not in his possession, custody, or control, should resolve the issue of failure of produc�on’ since one cannot be required to produce the impossible.”)(internal cita�ons omited). Finally, in accordance with its discre�on to cabin discovery consistent with
Rule 1 of the Federal Rules of Civil Procedure, and in light of the voluminous requests Plain�ff has already made and the discovery conducted thus far and ordered herein, Plain�ff is prohibited from serving addi�onal requests for documents and from serving interrogatories absent a showing of good cause and permission from this Court.
5. Meet and Confers Plain�ff contends that meet and confers are fu�le due to alleged “an�pathy” between the par�es, including defense counsel. (ECF No. 76.) Contrary to Plain�ff’s asser�on, defense counsel’s communica�ons throughout this li�ga�on have been professional and appropriate. Plain�ff’s refusal to engage in meet and confer communica�ons with the BOE Defendants violates both my Individual Rules of Prac�ce and the Local Rules. Further, blocking emails from defense counsel’s email address is inappropriate and impedes discovery. Plain�ff is required to
comply with her meet and confer obliga�ons. 6. Defendants’ Mo�on to Stay Discovery and Mo�on to Extend Deadlines The BOE Defendants have moved to stay discovery un�l Judge Subramanian has ruled on the mo�on to dismiss in order to streamline the discovery process. However, based on Defendants' representa�ons to the Court as to what they have already produced, taken
together with what the Court has ordered the BOE Defendants to produce above, the Court is sa�sfied that no further discovery is needed in this mater except possibly addi�onal deposi�ons that the par�es may no�ce. Because the Court believes the produc�on, if any, of the documents ordered above can be completed by the discovery deadline, May 31, 2024, the Court finds it unnecessary to stay discovery. Therefore, the BOE Defendants’ mo�on to stay discovery is DENIED. For similar reasons,
the Court finds that there is no reason to extend discovery and therefore Plain�ff’s request to extend discovery deadlines is DENIED. 7. Summary of Ac�on Items The Court summarizes the items the BOE Defendants are ordered to produce or respond to by the close of discovery below. To the extent not already produced, the BOE Defendants must:
A. Provide to Plain�ff an updated privilege log that includes the date ranges of the emails referenced in the log, the authors and recipients of the emails, and indica�ng whether any of the authors or recipients are atorneys. a. To the extent that non-privileged por�ons of the emails can be segregated and produced, the emails shall be produced in a redacted form with the privileged por�ons of the email thread redacted. b. Confirm that no other documents are being withheld on the basis of privilege.
B. Produce any Employee Handbook applicable to BOE employees in 2022.
C. First Set of Document Requests: a. Request 12: Need only produce documents sufficient to describe criteria for hiring poll workers in 2022. b. Request 23: Need only produce job descrip�ons applicable to coordinators in 2022 and training materials, if any, given to coordinators in 2022. If no training materials exist, Defendants shall so state in a leter to Plain�ff. c. Request 25: Need only produce writen complaints from voters against Plain�ff made before June 2022. If none exist, Defendants shall so state in a leter to Plain�ff. d. Request 26: Need only produce performance improvement plans that were given to Plain�ff, to the extent they exist. If none exist, Defendants shall so state in a leter to Plain�ff.
D. Second Set of Document Requests a. Request 4: Need only produce the names of coordinators that worked at the polling sites where Plain�ff worked in 2022, during the dates Plain�ff worked at such sites. b. Request 8: Need only produce writen complaints of race discrimina�on and retalia�on filed against Donna Ellaby between 2020 and 2022 (whether internally with BOE or with a state human rights agency or court). If there are no such complaints other than the one made by Plain�ff, Defendants shall so state in a leter to Plain�ff. c. Request 14: Need only produce emails to or from Cynthia Doty in 2022 that name or discuss or refer to Plain�ff or her Poll Worker ID number.
E. To the extent any of the above required documents do not exist, the BOE Defendants must inform Plain�ff thereof.
F. Provide the names of the custodians whose ESI Defendants searched. Run a search in such custodians’ ESI with Plain�ff’s correct poll worker number (221539) and provide Plain�ff with any documents from such searches that have not already been produced. G. Conduct a search of Cynthia Doty’s ESI for 2022, and provide Plaintiff with any documents from such search that has not already been produced. H. Produce discharges of other poll workers who were discharged or not hired for disciplinary reasons in the two-year period 2020-2022 to the extent those decisions were made by the people who supervised Plaintiff in 2022 and Defendant Ellaby. The names of the poll workers may be redacted.
As for Plaintiff, Plaintiff is ordered to appear at her deposition on May 22, 2024, as detailed above. Plaintiff is also reminded that behavior that impedes discovery, such as not appearing for a deposition, or blocking opposing counsel’s email address, will not be tolerated and may result in sanctions.
Conclusion
As set forth more fully above, Plaintiff’s motion to compel is GRANTED in part and DENIED in part. Defendants’ motion to stay discovery is DENIED. Plaintiff’s motion to extend discovery deadlines is DENIED.
The Clerk of the Court is respectfully directed to mail a copy of this Order to Plaintiff
and to terminate the motions at ECF Nos. 53 and 77.
SO ORDERED. DATED: New York, New York May 13, 2024 Kathavuce H (Aker KATHARINE H. PARKER United States Magistrate Judge