Opinion
23-CV-5460 (AS) (KHP)
07-29-2024
CARMAN WILLIAMS, Plaintiff, v. NYC BOARD OF ELECTIONS, et al., Defendants.
DISCOVERY ORDER
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
Presently before the Court are several discovery motions and issues raised by Plaintiff Carman Williams. The Court addresses these discovery issues below.
MOTION TO VACATE
On June 20, 2024, the Court issued a discovery order that, among other things, ordered Defendants to reproduce emails they had previously produced to Plaintiff, but in an electronic format, so that the bcc field was viewable (the “June 20th Order”). (ECF No. 104.) On June 25, 2024, Defendants filed a letter requesting an extension of the deadline to comply with the June 20th Order as well as a narrowing of its scope so that Defendants were only required to reproduce those emails that related to Plaintiff's requests to work early voting in the spring of 2022, citing the time-consuming nature of searching and reproducing the emails particularly when it believed that very few emails contained bcc recipients (the “June 25th Letter”). (ECF No. 108.) On June 26, 2024, the Court issued an order extending the deadline for Defendants to comply with the June 20th Order by one week, but not ruling on the request regarding the scope of the reproduction to give Plaintiff an opportunity to respond to Defendants' request. (ECF No. 110.) That Order was mailed to Plaintiff by the Court. On July 3, 2024, the Court issued another order extending the deadline for Defendants to comply with the June 20th Order without ruling on the request regarding the scope of the reproduction, to give Plaintiff further time to respond to Defendants' request. (ECF No. 114.) That order also was mailed to Plaintiff. Both of the Court's orders contained the June 25th Letter from Defendants. On July 9, 2024, after still not hearing from Plaintiff, the Court ruled on Defendants' request regarding the scope of the June 20th Order (the “July 9th Order”). (ECF No. 116.) The July 9th Order ruled that Defendants were only required to reproduce emails that were actually bcc'd to a person. That is, the Court clarified that Defendants were not required to reproduce those emails in which no one was bcc'd. This ruling did not change the substance of information Plaintiff would receive because Plaintiff would learn who was bcc'd, if anyone, on the entire production. Thus, the July 9thOrder did not narrow the scope of information Plaintiff was to receive, as requested by Defendants, but rather reduced the burden of reproduction by holding that Defendants did not have to needlessly reproduce emails in which no one was bcc'd.
Plaintiff now seeks to vacate the July 9th Order because she asserts Defendants never served her with the June 25th Letter and she was therefore never given an opportunity to respond to Defendants' request. (ECF No. 124.) Plaintiff points out that in the June 25th Letter, Defendants indicated that Plaintiff had been copied “via ECF” rather than by U.S. mail, but Plaintiff is not subscribed to ECF and therefore must receive filings via U.S. mail. Plaintiff filed other related letters similarly asserting that Defendants were aware she does not have ECF access and that she did not have an opportunity to respond to the June 25th Letter. (ECF Nos. 123, 125.)
Plaintiff purports to bring the motion to vacate pursuant to Federal Rule of Civil Procedure (“Rule”) 60, but that rule concerns vacatur of “a final judgment, order, or proceeding” which has not been issued here. Fed.R.Civ.P. 60(b). Vacatur pursuant to Rule 60 cannot provide relief on an interlocutory order. See Strike 3 Holdings, LLC v. Doe, 337 F.Supp.3d 246, 251 (W.D.N.Y. 2018) (“Rule 60(b) only applies to final orders-it does not provide relief from an interlocutory order.”); Grand River Enters. Six Nations, Ltd. v. King, No. 02 Civ. 5068(JFK), 2009 WL 1739893, at *2 n.1 (S.D.N.Y. June 16, 2009) (“By its express terms, Rule 60(b) applies only to final orders and not interlocutory ones. Since the discovery orders at issue here are interlocutory orders, Rule 60(b) has no application.”).
In any case, Plaintiff's arguments justifying vacatur are unpersuasive. While Plaintiff is correct that Defendants should have mailed the June 25th Letter to her, the Court's order dated June 26th granting Defendants a one-week extension but refraining from ruling on Defendants' substantive request was mailed to Plaintiff on June 27th and contained Defendants' June 25thLetter. Therefore, Plaintiff did in fact receive Defendants' letter albeit not from Defendants. Further, the Court deliberately delayed ruling on Defendants' request in order to give Plaintiff an opportunity to respond. The Court did not rule on Defendants' request until twelve days later, on July 9, 2024. Thus, Plaintiff had notice of Defendants' request through the Court's mailing and time to respond. The fact that Plaintiff had notice from the Court does not mean that Defendants acted properly - they did not. Defense counsel has represented to the Court that he believes he mailed the June 25th Letter but cannot say so with certainty. As previously ordered, Defendants must mail all filings with the Court to Plaintiff by first class mail and file a notice of service of same going forward. Failure to comply with this requirement in the future may result in sanctions.
Notwithstanding Defendants' failure to properly serve Plaintiff, Plaintiff was not prejudiced by this failure given that she received notice from the Court's mailing and given that the Court's ruling on Defendants' request had no impact on the substantive information Plaintiff sought from Defendants - the people who were bcc'd on emails. Rather, the July 9thOrder simply reduced the burden on Defendants from having to reproduce emails that were not bcc'd to anyone, and therefore reproduction would result in no new information. Accordingly, Plaintiff's motion to vacate is DENIED.
MOTION TO HOLD DEFENDANTS IN CONTEMPT
On July 10, 2024, Plaintiff filed a motion seeking an order holding Defendants in contempt pursuant to Federal Rule of Civil Procedure 45(g) for failing to respond to a subpoena served on April 23, 2024 to the New York City Board of Elections' General Counsel, Hemalee Patel, who is also a party in this case (the “Subpoena”). (ECF No. 120.) Plaintiff also seeks an order from the Court requiring Defendants to provide the information sought in the Subpoena. In response, Defendants assert that the document requests contained in the Subpoena are duplicative of requests this Court has previously ruled are overbroad. (ECF No. 136.)
Pursuant to Rule 45(g), a court may hold in contempt “a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” However, a subpoena is not the proper vehicle to issue discovery requests to parties to a case, but rather is used for nonparties. See New Falls Corp. v. Soni, No. CV166805ADSAKT, 2020 WL 2836787, at *3 (E.D.N.Y. May 29, 2020) (“Rule 45 of the Federal Rules of Civil Procedure permits a party to obtain documents from a non-party that is in its ‘possession, custody, or control.'”) (emphasis added); Mizrahi v. Equifax Info. Servs., LLC, 345 F.R.D. 392, 395 (E.D.N.Y. 2024) (“Fed. R. Civ. P. 45 sets forth the process for a party to obtain information from non-parties via subpoenas.”) (emphasis added). Thus, the subpoena was not the proper discovery tool to seek documents from Defendants. In light of Plaintiff's pro se status, the Court treats the requests contained in the Subpoena as discovery requests under Rule 34, and construes the contempt motion as a motion to compel responses to such requests and for sanctions under Rule 37-the proper procedural mechanism for the relief Plaintiff seeks.
Rule 37 “governs the district court's procedures for enforcing discovery orders and imposing sanctions for misconduct.” World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 158 (2d Cir. 2012). The rule's sanction provisions serve several purposes including to “ensure that a party will not benefit from its own failure to comply;” to deter and “obtain compliance with the particular order issued;” and to “serve a general deterrent effect on the case at hand and on other litigation, provided that the party against whom they are imposed was in some sense at fault.” Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988) (citing Nati'l Hocky League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976)). Rule 37(a) permits a party to move for an order compelling disclosure or discovery and must be accompanied by a certification that the movant has in good faith attempted to confer with the other party in an effort to obtain the discovery without resort to a motion. Fed.R.Civ.P. 37(a)(1). The Rule can be invoked for failure to answer deposition questions, answer interrogatories, produce documents, provide initial disclosures and also for evasive or incomplete disclosures or production. Fed.R.Civ.P. 37(a)(3-4).
If a Rule 37(a) motion is denied, the Court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant to pay the party who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees, unless the motion was substantially justified or other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(B). If a Rule 37(a) motion is granted, the court similarly must order the party whose conduct necessitated the motion to pay the movant's reasonable expenses incurred in bringing the motion, including attorney's fees, unless the movant filed the motion without first conferring in good faith to resolve the matter, the opposing party's nondisclosure, response or objection was substantially justified, or other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(A).
Document requests under Rule 34 are subject to Rule 26(b)(1)'s overriding relevance requirement which states that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). Pursuant to Rule 26(b)(2)(C), a court may limit discovery if, among other things, the discovery sought is unreasonably cumulative or duplicative.
Here, the requests contained in the Subpoena are both overbroad and duplicative of document requests the Court has previously ruled on. On March 6, 2024, Plaintiff filed a motion to compel responses to her first and second requests for documents. (ECF No. 53.) Plaintiff's discovery requests included, among many others, requests for “All internal communications 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 voting,' ‘roster,' and ‘selection'[.]” (First Document Request No. 21.) Plaintiff also requested “Copies of any emails originating from any email address utilized by Carol Winer to the BOE for the past three years including ESI and metadata[.]” (Second Document Request No. 13.) Defendants represented to the Court in their opposition to Plaintiff's motion to compel that they had already produced all correspondence between Plaintiff and Defendants, including correspondence related to the dissolution of her work relationship with the Board of Elections and the suspension of her privilege to work early voting shifts. (ECF No. 63.) On May 13, 2024, the Court issued an Opinion and Order on Plaintiff's motion to compel, which held that Defendants were not required to respond to either First Document Request No. 21 or Second Request No. 13 because they were overbroad, unduly burdensome, and not tailored or proportional to the claims and defenses in the case (“May 13th Order”). (ECF No. 80.) Nevertheless, the Court did order Defendants to produce, to the extent not already produced, emails to or from Cynthia Doty in 2022 that name, discuss, or refer to Plaintiff or her Poll Worker ID number.
The requests contained in the Subpoena ask Defendants to search the ESI and “residual ESI” of 15 individuals including Donna Ellaby, Debra Leible, Cynthia Doty, Carol Winer, and others, using many search terms, such as Plaintiff's name and poll worker number. Such requests are even broader than the requests the Court previously ruled on in its May 13th Order and the information Plaintiff seeks in the Subpoena is duplicative of information she has either already requested or received. Therefore, the Court exercises its discretion to limit discovery because the requests contained in the Subpoena are “unreasonably cumulative or duplicative” and not proportional to the needs of this case given the discovery that already has been produced. Fed.R.Civ.P. 26(b)(2)(C).
Accordingly, Plaintiff's motion to hold Defendants in contempt, which the Court construes as a motion to compel and motion for sanctions is DENIED. In light of Plaintiff's pro se status and lack of experience with litigation, the Court finds that an award of fees and expenses is not warranted here.
LETTER REGARDING ESI
On July 18, 2024, Plaintiff filed a letter requesting that the Court order Defendants to answer several questions regarding retention of electronically stored information (“ESI”) and Defendants' searches for information during discovery in this case. (ECF No. 132.) Defendants filed a letter addressing Plaintiff's request on July 24, 2024 asserting that Plaintiff's questions are duplicative of previous discovery requests. (ECF No. 136.)
In evaluating any discovery dispute, the Court must determine whether the information sought is relevant and proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). When the discovery sought is collateral to the relevant issues (i.e., discovery on discovery), the party seeking the discovery must provide an “adequate factual basis” to justify the discovery, and the Court must closely scrutinize the request “in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.” Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., No. 15-cv-0293 (LTS) (JCF), 2016 WL 3906712, at *7 (S.D.N.Y. July 14, 2016) (quoting Freedman v. Weatherford International Ltd., No 12 Civ. 2121, 2014 WL 4547039, at *2 (S.D.N.Y. Sept. 12, 2014)). Discovery on discovery is “disfavored absent a showing of abuse.” See Roche Freedman LLP v. Cyrulnik, 2023 WL 3867238, at *1 (S.D.N.Y. Jan. 3, 2023).
Here, Defendants' retention of documents and the searches they conducted during discovery are collateral to the relevant issues in this case. There has been no showing of abuse by Defendants in the conduct of discovery, and Plaintiff has not provided any factual basis to suggest that Defendants have failed to preserve evidence. Therefore, Plaintiff's request that the Court order Defendants to provide information about preservation of documents and conduct of discovery is DENIED.
The Court also notes that in Plaintiff's first set of document requests, request 20 sought “Copies of communications to employees/agents regarding protocols to be followed for the retention of documents and records pertinent to pending litigation[.]” The Court previously held in its May 13 th Order that Defendants were not required to respond to that request because it sought irrelevant information.
Plaintiff also asserts that Defendants never disclosed where ESI was located on their computer systems pursuant to Rule 26. Plaintiff does not identify which part of the rule requires a party to both produce responsive documents and disclose the location of such documents. Rule 26(a)(1)(A)(ii) states that a party must provide to the other party “a copy -or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses[.]” (emphasis added). Defendants have produced responsive documents and therefore are not also required to provide the location of such documents.
CONCLUSION
For the reasons set forth above, Plaintiff's motion to vacate and motion to hold Defendants in contempt are both DENIED. Plaintiff's request that the Court order Defendants to provide the information requested in Plaintiff's letter at ECF No. 132 is also DENIED.
The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 120 and 124 and to mail a copy of this Order to Plaintiff.
SO ORDERED.