Opinion
1:04-CV-263 (TJM/RFT).
October 19, 2004
ORDER
This is a 42 U.S.C. § 1983 civil rights action in which the Plaintiff seeks compensatory and punitive damages and equitable relief. This lawsuit arises out of the Defendants foreclosure of the Plaintiff's property in Clinton County allegedly performed in violation of the Plaintiff's constitutional rights. Succinctly stated, the Plaintiff became delinquent on her property taxes. Apparently a foreclosure notice was sent to the Plaintiff's Washington D.C. address, certified mail, while she may have been in London. Dkt. No. 18, Pl.'s lt-mem. at p. 2. The certified mail was returned to the post office as unclaimed. The Plaintiff asserts that she has not received any other notice that the Defendants were or had taken her property until her tenant advised her of the "for sale" sign placed in her yard. She further claims that the Defendants did not make any further attempts to provide her with notice of the foreclosure or the sale. Thereafter, the Plaintiff attempted to redeem the property but was told her only remedy would be to bid at the tax auction. The Plaintiff charges that the Defendants are depriving her of her property without due process, inter alia, in light of the fact they did not make any further attempt to serve her with a notice of the tax foreclosure and refused to reconvey her property back to her for the full payment of unpaid taxes, and costs, despite the lack of notice to her. Dkt. No. 1, Compl.; Dkt. Nos. 15 16, Pl.'s lt-mems.
The parties agreed that the sale of this property will be stayed pending the finalization of this litigation. Dkt. No. 1 at ¶ 49; Dkt. No. 17, Defs.' lt-mem., dated August 16, 2004, at p. 1.
In addition to denying the allegations, the Defendants raise fourteen affirmative defenses and one counterclaim. Dkt. No. 4, Ans. The more salient defenses for our discussion are that the Defendants: (1) compiled with state law (Second Third Defense); (2) had no custom or practice to discriminate or violate any constitutional rights (Fourth Defense); (3) performed in good faith, without malice or intent to violate any rights (Fifth Defense); (4) are protected by either absolute and/or qualified immunity (Ninth Defense); and (5) this lawsuit is precluded and without basis of law and fact (Thirteen Fourteenth Defense, and Counterclaim). Id.
The Plaintiff has served a Demand to Produce to which the Defendants object to eight of those demands and seek an order of protection. See Dkt. No. 17. Particularly, Defendants object to Plaintiff's Demands 4, 5, 8, 9, 11, 12 13. Id. Defendants' overall arguments are that these Demands are seeking irrelevant information, overbroad, and limited by the nature of the claim. Id. at p. 1. Since Defendants are seeking an order of protection, the burden of showing good cause rests with them. A court may issue a protective order fashioning conditions it deems most appropriate for cases such as this. FED. R. CIV. P. 26(c) (stating, in relevant part, that "[u]pon motion by a party . . . and for good cause shown, the court . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense"); Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992); see also Flatherty v. Seroussi, 209 F.R.D. 300 (N.D.N.Y. 2002); Bank of New York v. Meridien BIAO Bank Tanzania Ltd. 171 F.R.D. 135, 143 (S.D.N.Y. 1997) (quoting In re "Agent Orange" Product Liab. Litig., 821 F.2d 139, 145-46 (2d Cir. 1987)). As we determine whether the Defendants have met their burden, we must also turn to the issue of relevancy.
The scope of discovery in federal lawsuits is significant and broad. FED. R. CIV. P. 26(b)(1) states in pertinent part that:
parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
The 2000 Amendments to this discovery statute created a two tier analysis of what may be requested to be disclosed. When the discovery is party controlled, relevancy is guided by whether it relates to the claims and defenses plead. FED. R. CIV. P. 26(b)(1) advisory committee's notes 2000 Amend. However, authority by the court to grant broader and more flexible discovery is still retained. In this regard when the court's authority is invoked, relevancy revolves around good cause being shown and that the requested matter is relevant to the subject matter involved in the case. Id.; In Re Surety Ass'n, 388 F.2d 412, 414 (2d Cir. 1967) ("The only restriction placed upon the matters which may be gone into upon discovery examinations is that they be relevant."). Considering the court's inherent powers to regulate discovery and permit discovery of information relevant to the subject matter, discovery then, in a sense, is more expansive and liberal, guided by the reasonable needs of the case. In re Six Grand Jury Witnesses, 979 F.2d 939, 943 (2d Cir. 1992). Generally speaking, the burden of establishing relevancy is on the party seeking the disclosure. See A.I.A. Holdings S.A. v. Lehman Brothers, 2000 WL 763848, at *3 (S.D.N.Y. June 12, 2000).
To be relevant, the request for information must be "germane" to the subject matter of the claim, defenses or counterclaims, though not necessarily limited by such pleadings, and is not controlled by whether it will be admissible at trial. Surety Ass'n, 388 F.2d at 414 ("[P]arties should not be permitted to roam in the shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that might conceivably become so."); Johnson v. Nyack Hosp., 169 F.R.D. 550, 556 (S.D.N.Y. 1996). However, the demarcation between what information is relevant to the claims and defenses and relevant to the subject matter cannot be defined with precision. FED. R. CIV. P. 26 advisory comm. notes 2000 Amend; see also Shang v. Hotel Waldorf-Astoria Corp., 77 F.R.D. 468 (S.D.N.Y. 1978) (when drawing boundaries that define information that is relevant to the subject matter involved in the action, there is no way to state a general rule by which boundaries can be drawn). Thus, the court must weigh a host of factors to determine relevancy and reasonableness. See Surety Ass'n, 388 F.2d at 414 (the trial judge has considerable discretion on the issue of relevancy).
Since the Court's role in determining relevancy on the subject matter has not changed since the 2000 Amendment, except that the party seeking the discovery from the court must show good cause, we are permitted to seek some guidance from precedents prior to the enactment of these amendments. A court may restrict discovery to the claim and defense, but it need not. The court is permitted, depending on the nature of the case, to broaden the scope of discovery. In this vein, the requirement of relevancy with regard to discoverable matters should be construed liberally and with common sense. In re Agent Orange Product Liability Litig., 98 F.R.D. 558, 559-60 (E.D.N.Y. 1983); see also Kerr v. United States District Court, 511 F.2d 192, 196 (9th Cir.), aff'd 426 U.S. 394, 397-99 (1976) (there has been explicit recognition that the question of relevancy is to be more loosely construed at the discovery stage than at trial).
First, this Court notes that we do not have to decide the merits of this litigation in order for us to determine the scope of discovery, as Defendants suggest. Although, as both parties draw to our attention, this litigation may turn on recent precedents, which will be the crux of a motion for summary judgment, nonetheless, discovery embraces a much broader perspective than what may be admissible at trial, and the primary issue for this Court is whether this requested discovery may lead to admissible evidence at trial. Malsh v. New York City Police Dep't., 1995 WL 217507, at *2 (S.D.N.Y. Apr. 11, 1995) (at the pretrial stage of the litigation, the court was not prepared to hold that certain documents were not calculated to lead to the discovery of admissible evidence).
Both parties have referred to the controlling law on such litigation in support of the merits of their divergent positions on the extent and nature of serving a notice of foreclosure upon a delinquent taxpayer. See Akey v. Clinton County, New York, 375 F.3d 231 (2d Cir. 2004); Zachary v. Clinton County, New York, 86 Fed. Appx. 451, (2d Cir. 2004).
On its face, this Court would initially agree with the Defendants that the nature of the litigation may limit the scope of discovery. Dkt. No. 17 at p. 1. This is not a class action and may only include the claims of one particular party, the Plaintiff. Id. However, as the Plaintiff notes, it is the Defendants' defenses which may expand discovery beyond our visceral reaction to her requests. Particularly, the Plaintiff contends that the Defendants' affirmative defenses provide the relevancy for her requests specifically: (1) Defendants had no custom or practice to discriminate or violate in any way the constitutional rights of the plaintiff or other person (Fourth Defense); (2) all actions were performed in good faith and without malice (Fifth Defense); (3) the presence of the absolute and/or qualified immunity (Ninth Defense); and (4) that punitive damages are not available against either the municipality or the individual Defendants (Tenth Defense). Dkt. No. 18 at p. 6. Clearly then, discovery related to the bases of defenses command similar parity of that required for claims. FED. R. CIV. P. 26(b)(1).
We agree with the Plaintiff that defenses that entail a defendant's state of mind when acting, the routine nature of the practice, its entitlement to an immunity defense, and whether punitive damages exists, notwithstanding that this is an individual claim, require a broader range of discovery. We further agree, to some extent, these Demands relate to the Defendants' processes and procedures and the Plaintiff's due process claim under the equal protection clause. Dkt. No. 16 at pp. 5 6. On the other hand, we acknowledge that several of the Demands are irrelevant and overbroad, however, they are subject to this Court's broad latitude and discretion in controlling discovery and limiting abuses.
Based upon the foregoing, this Court directs that the Defendants respond to the Plaintiff's respective Demands as follows:
REQUEST TO PRODUCE NO. 4:
REQUEST TO PRODUCE NO. 5:
Produce copies of all envelopes containing tax foreclosure notices, whether to owners or lien holders, that were returned to you by the Post Office from the October 2002 Notice of Tax Foreclosure.
Granted in part. The Defendants shall provide copies of all envelopes and related documents that pertain to the foreclosure notices sent certified mail but were returned as unopened, unclaimed, receipt denied, or rejected by the Post Office for the calendar years 2002 and 2003.
Produce all documents indicating an attempt to give actual notice to owners or lien holders after the envelope addressed to them was returned to you in October 2002.
Granted.
REQUEST TO PRODUCE NO. 7:
REQUEST TO PRODUCE NO. 8:
Produce all of your records for all properties taken by default in tax foreclosures on March 20, 2003.
Granted in Part. Defendants shall produce records pertaining to properties taken by default in tax foreclosures on March 20, 2003, in which the notice was sent to the taxpayer by certified mail but was returned by the Post Office as either unclaimed, rejected, receipt denied, or unopened.
Produce all documents reflecting the names of persons, including, but not limited to notes, memos, and correspondence, who were sent the tax foreclosure notice [and] who attempted to pay property taxes on or after January 17, 2003, but whose payment was not accepted by you.
Granted.
REQUEST TO PRODUCE NO. 9:
REQUEST TO PRODUCE NO. 10:
Produce all documents reflecting properties foreclosed upon by you by default on March 20, 2003, that were not offered for sale in the June 2003 auction.
Granted in Part. This request is overbroad. The Defendants shall not be required to provide all documents, but shall provide sufficient documents, which reflect what properties were foreclosed upon by the Defendants based upon default on March 20, 2003, but were not offered for sale in the June 2003 auction.
Produce all documents reflecting claims or assertions of improper tax foreclosures by you during the 2002-2003 tax foreclosure process.
Granted in Part. Defendants shall produce documents reflecting claims or assertion of improper tax foreclosures by the Defendants during the period of 2002-2003 tax foreclosure process that pertain to certified mail being returned by the Post Office either as unclaimed, unopened, or receipt denied or rejected.
Produce all documents reflecting income received at tax auctions from 2000 to the current time by Defendants.
Granted in Part. Defendants shall provide a document or documents that reflects income received at tax auctions for the fiscal periods of 2001 to 2003.
Produce all documents reflecting reports, memoranda, letters, or other communication from you to the New York State Office of Real Property Services to you [sic] regarding the tax foreclosure of properties from 1990 to the current time.
Granted in Part. Defendants shall produce documents reflecting reports, memoranda, letters, or other communication sent by Defendants to the New York State Office of Real Property Services regarding the tax foreclosure of properties for the period of 2002 to 2003.
Produce all telephone logs reflecting telephone calls received by the Treasurers office in 2000, 2001, 2002 and 2003.
This requests is denied as extremely burdensome. The Defendants shall produce any log reflecting telephone calls received by the Treasurers' office on property foreclosure for 2002 and 2003.
It is further ordered that the Defendants provide the requested documents consistent with this Order within thirty days of the receipt of this Order, unless the Defendants advise the Court that they are unable to comply because such directions are too laborious to accomplish within this time frame.
IT IS SO ORDERED.