Stinson v. City of N.Y.
Stinson v. City of N.Y.
2015 WL 4610422 (S.D.N.Y. 2015)
July 23, 2015

Sweet, Robert W.,  United States District Judge

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Proportionality
Failure to Produce
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Summary
The Plaintiffs' motion to compel the production of ESI was granted in part and denied in part. The Court directed the parties to meet and confer in order to develop a narrowly tailored search protocol for each custodian or set of custodians whose ESI is to be searched. Additionally, the Court directed the parties to formulate a special and more restrictive protocol for the ESI of the Internal Affairs Bureau chiefs. The motion to compel the deposition of Officer Boylan was denied as moot, and the Defendants' motion for a stay of the case was denied.
Additional Decisions
Sharif STINSON, et al., Plaintiffs,
v.
CITY OF NEW YORK, et al., Defendants
No. 10 Civ. 4228(RWS)
Signed July 18, 2015
Filed July 23, 2015

Counsel

Cohen & Fitch LLP by: Gerald M. Cohen, Esq., Joshua P. Fitch, Esq ., New York, NY, The Law Offices of Jon L. Norinsberg, Esq., by: Jon L. Norinsberg, Esq., New York, NY, Quinn Emanuel Urquhart & Sullivan, LLP, by: Benjamin J. Gildin, Esq., Christopher T. Cook, Esq., Elinor C. Sutton, Esq., Jennifer D. Bishop, Esq., Kevin A. Janus, Esq., Steig D. Olson, Esq., Stephen R. Neuwirth, Esq., New York, NY, for the Plaintiffs.
Zachary W. Carter, Corporation Counsel of the City of New York, by: Qiana C. Smith–Williams, Esq., Joanne M. McLaren, Esq., Lisa M. Richardson, Esq., Sheila Weinstein, Esq., Steven M. Silverberg, Esq., Suzanna P. Mettham, Esq., New York, NY, for the Defendants.
Sweet, Robert W., United States District Judge

OPINION

*1 Plaintiffs Sharif Stinson, Mariam Farnum, Charlene Finley, Ryburn Walkes, Jamel Towe, Christian Dudley, Jocelyn Ferdinand, Gary Shaw, Michael Bennett, Chanel Meausa, David Thompson, Joseph Sarpong, Jeremy Thames, Sean Pettigrew, Leander Griffin, Brian Morris, Mica Ancrum, Ricardo Jones, Victor Breland, and Michael Riddick (collectively, the “Plaintiffs”) have filed two motions to compel production from the City of New York and Raymond Kelly, the Commissioner of the New York Police Department (“NYPD,” together with the City of New York, the “Defendants” or the “City”). The first seeks an Order compelling the deposition of Police Officer Ryan Boylan, who was allegedly involved in a 2009 incident with Plaintiff Leander Griffin. The second seeks the production of electronically stored information (“ESI”) kept by the NYPD. Also pending before the Court is the Defendants' motion to stay the case.[1]
For the reasons set forth below, the motion to compel the deposition of Officer Boylan is denied as moot, the motion to compel the production of electronically stored information is granted in part and denied in part, and the motion to stay is denied.
The general facts of the case were set out in detail in this Court's April 23, 2012 ruling on class certification. See Stinson v. City of New York, 282 F.R.D. 360, 364–67 (S.D.N.Y.2012).
A. Motion to Compel the Deposition of Officer Boylan
The Plaintiffs sought the deposition of Officer Boylan in connection with an allegation in their Amended Complaint that he stopped and detained Plaintiff Leander Griffin on August 5, 2009 before issuing a summons that was later dismissed as legally insufficient. The Plaintiffs issued a subpoena for Officer Boylan's testimony on April 25, 2013, but the City responded on January 16, 2014 that it would not be producing him for deposition because he did not issue the summons the Plaintiffs referred to in their Amended Complaint.
The issue arose from a pair of mistakes made by the Plaintiffs' legal team. First, although the Amended Complaint included several pieces of identifying information about the alleged incident involving Mr. Griffin and Officer Boylan, it misidentified the address where the alleged incident took place. The incident that predicated the summons Officer Boylan issued to Mr. Griffin took place at 229 East Kingsbridge Road in the Bronx, while the Amended Complaint located the incident at 1055 Rosedale Avenue, where Mr. Griffin had been issued a different summons on a different day. When asked at his deposition to discuss the incident at issue in this case, Mr. Griffin testified about the events that took place on Rosedale Avenue, and Plaintiffs' counsel confirmed to the Defendants that it was the Rosedale Avenue incident, and not the Kingsbridge Road incident involving Officer Boylan, that they were concerned with in their Amended Complaint. Defendants did, however, question Mr. Griffin about the Kingsbridge Road summons as well.
*2 Having realized their mistake, the Plaintiffs sent a letter-motion to the Court on May 12, 2015, asking for an order compelling Officer Boylan's deposition. In their letter they offered to cure any procedural issues by either amending their complaint to clarify the address of the incident or making Mr. Griffin available for a second deposition. In their May 19, 2015 response to the Plaintiffs' letter-motion, the Defendants accepted the Plaintiffs' offer, agreeing to produce Officer Boylan for deposition in exchange for a second chance to speak with Mr. Griffin.
B. Motion to Compel Production of Electronically Stored Information
This discovery dispute arose when the Patrolmen's Benevolent Association of the City of New York, Inc. (the “PBA”), a nonparty that has taken part in prior motion practice in this case (see, e.g., Dkt. Nos. 149, 150), produced a hard copy version of a June 4, 2010 email sent by Police Captain Andrew Benjamin, the commanding officer of the Bronx Task Force, concerning evaluations of several officers based on the NYPD's COGNOS database. The hard copy of the email implied that data from COGNOS was attached to the original electronic version.
The Plaintiffs viewed the email as responsive to some of their prior requests for production, and asked the City to produce it. Counsel for the City replied that the email was not in its possession (outside of the version provided by the PBA), and that Captain Benjamin did not have a copy of it either. The City also informed the Plaintiffs that the NYPD email system does not retain emails that are more than four years old, so a search for the email would be fruitless.[2]
The Plaintiffs filed a letter-motion with the Court on May 14, 2015, asserting that the City was not complying with its electronic discovery obligations. Their letter requested an order that would compel the City to 1) identify all NYPD officers and other personnel likely to have information relevant to the Plaintiffs' allegations; 2) immediately search their electronically stored information; and 3) produce all responsive and nonprivileged documents by June 12. The City filed its response on May 19, asserting that the Plaintiffs' demands were overbroad and that it was in compliance with all its discovery obligations. Although the motion was heard on submission on May 20, correspondence continued. The Plaintiffs replied on May 21, narrowing somewhat the custodians whose ESI they desire to be searched, and then supplemented that reply with a May 23 submission designating the custodians with specificity. The City replied in a May 28 letter to the Court, opposing the motion as burdensome and overbroad.
*3 Federal district courts have broad discretion in deciding motions to compel. See Grand Cent. P'ship. Inc. v. Cuomo, 166 F.3d 473, 488 (2d Cir.1999). Federal Rule of Civil Procedure 26 states:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.
Fed.R.Civ.P. 26. If a party objects to discovery requests, that party bears the burden of showing why discovery should be denied. Freydl v. Meringolo, 09 Civ. 07196(BSJ)(KNF), 2011 WL 256608–7, at *3 (S.D.N.Y. June 16, 2011). Where the party responding to the motion agrees to provide the discovery requested, a motion to compel becomes moot. See, e.g., Decker v. Nagel Rice LLC, 716 F.Supp.2d 228, 236 (S.D.N.Y.2010).
Federal Rule 34 contemplates the production of electronically stored information along with tangible things. See Fed R. Civ. P. 34(a). Recognizing the potential burdens that extensive electronic discovery can impose in large cases such as this one, Federal Rule 26 relieves parties from having to disclose electronically stored information that is “not reasonably accessible because of undue burden or cost.” See Fed.R.Civ.P. 26(b)(2)(B). The party resisting discovery bears the burden of making the necessary showing. Id. The Court is empowered to order even unduly burdensome electronic discovery if good cause is shown, or to shape the terms and conditions of the electronic discovery. See id. “Of course, the best solution in the entire area of electronic discovery is cooperation among counsel.” William A. Gross Const. Assocs., Inc. v. Am. Mfg'rs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y.2009).
The decision to stay discovery is committed to the district court's discretion, and will be reversed only “when the action taken was improvident and affected the substantial rights of the parties.” Hughes v. City of Albany, No. 98–2665, 1999 WL 709290, at *2 (2d Cir. July 1, 1999). The authority to stay a pending action “is an aspect of [the Court]'s broad and inherent power over its own process, to prevent abuses, oppressions and injustice, so as not to produce hardship, and to do substantial justice. In issuing a stay, a court must weigh competing interests and maintain an even balance.” Flo & Eddie, Inc. v. Sirius XM Radio Inc., No. 13 Civ. 5784, 2015 WL 585641, at *4 (S.D.N.Y. Feb. 10, 2015) (quoting Soler v. G & U Inc., 86 F.R.D. 524, 526 (S.D.N.Y.1980)).
A. The Motion to Compel Officer Boylan's Deposition is Moot.
In the City's May 19, 2015 response papers, it accepted the Plaintiffs' offer to provide the City a second chance to question Plaintiff Leander Griffin in exchange for Officer Boylan's testimony. The City's agreement to produce Officer Boylan renders the Plaintiffs' motion to compel production moot. See Alexander Interactive, Inc. v. Adorama, Inc., No. 12 Civ. 6608, 2014 WL 61472, at *6 (S.D.N.Y. Jan. 6, 2014) (denying motion to compel where nonmovants agreed to provide the requested discovery); U.S. Bank Nat'l Ass'n v. PHL Variable Ins. Co., No. 12 Civ. 6188, 2013 WL 1728933, at *3 (S.D.N.Y. Apr. 22, 2013) (same). Accordingly, the motion is denied.
B. The Motion to Compel Discovery of Electronically Stored Information is Granted in Part and Denied in Part.
*4 As laid out in Plaintiffs' May 26 letter, the motion to compel discovery of electronically stored information is targeted at ten categories of NYPD officers: 1) supervisors named in 22 grievance letters and associated investigations; 2) ten officers identified in certain allegedly quota-related audio recordings produced in this case, along with such other NYPD personnel as can be identified by name as speakers or as people discussed therein; 3) thirteen officers who allegedly issued summonses to the Lead Class Representatives; 4) twelve senior NYPD personnel who attended the NYPD's CompStat meetings; 5) fifteen NYPD officers who gave testimony or were discussed in previous court cases referencing quotas; 6) five supervisorylevel officers alleged in recent media articles to have been involved in quotas; 7) all sergeants, lieutenants, and commanding officers in two NYPD precincts alleged to have retaliated against whistleblowers objecting to quotas; 8) the current and former Chiefs of the NYPD's Internal Affairs Bureau, 9) NYPD Sergeant Kerry Carty, associated with a quota in the 61 st Precinct by a text message produced in this case; and 10) Inspector Kevin Nicholson, alleged to have supervised officers who were subject to quotas.
In its May 19 and May 28 letters, the City raises several general and specific objections to the ESI sought by the Plaintiffs. When determining a motion to compel the production of ESI, a district court conducts a two-stage inquiry: first, has the party resisting discovery shown that the information in question is not reasonably accessible because of undue cost, and second, has the party requesting dicovery nonetheless shown good cause to obtain it? Fed.R.Civ.P. 26(b)(2)(B); Bagley v. Yale Univ., No. 3:12–CV–1890, 2015 WL 1897425, at *7 (D.Conn. Apr. 27, 2015).
First, the City argues that the Plaintiffs' requests are overbroad in that they seek ESI from too many NYPD custodians. (See City's May 19 Letter, Dkt. No. 218, at 1–2; City's May 28 Letter, Dkt. No. 221, at 1–2.) The City is certainly correct that the Plaintiffs' initial letter-motion, which sought an order compelling the City “to search the ESI of all NYPD officers and their supervisors who are alleged to have engaged in the conduct described by Plaintiffs, and of all NYPD employees who have investigated, or whose role or responsibility it is to investigate, this conduct” (Pl.'s May 14 Letter, Dkt. No. 214, at 4) was overbroad on its face. Since the Plaintiffs allege that an unlawful quota policy “exists in every precinct throughout the City of New York” (Amended Complaint, Dkt. No. 8, ¶ 36), the letter of their initial demand would have required the City to search virtually all electronic information kept by the NYPD, the largest municipal police force in the nation.
Perhaps recognizing the unreasonable nature of their initial position, the Plaintiffs' May 26 letter narrows their request to 49 named custodians, along with an unspecified number of supervisors named in grievance letters, officers mentioned in audio recordings, and supervisors in precincts with alleged NYPD whistleblowers. Although the number of custodians is significant, the City's May 28 letter in response includes no affidavits or other evidence tending to show that searching the ESI of the requested custodians is not reasonably practicable without undue cost, and in any event, a large scale search of ESI is appropriate in a case such as this one where the Plaintiffs are attempting to discover both law enforcement policies at an executive level and the way those policies are communicated to officers. Cf. Nat'l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 877 F.Supp.2d 87, 112–13 (S.D.N.Y.2012) (ordering the FBI, DHS, and ICE to search the ESI of 51 specified custodians, as well as an unspecified number of additional custodians meeting certain criteria, regarding ICE's Secure Communities program). As to the three categories that contemplate an indefinite amount of custodians-supervisors named in grievance letters, officers heard on or mentioned in audio recordings, and supervisors of alleged whistleblowers-each category contains its own limiting principle, but the parties are directed to meet and confer in order to develop a specific list of custodians to search, not to exceed 25 in total. Cf. id. (setting reasonable numbers of custodians to search where requests had left categories openended).
*5 The City also contends that the Plaintiffs' motion is overbroad because it does not include search terms, date ranges, or other avenues for limiting the scope of documents demanded. (See May 19 letter at 2–3, May 28 letter at 2.) The City is certainly correct that requiring a search of every email or electronic file kept by each custodian over the entire time period at issue-more than ten years, according to Paragraphs 26–36 of the Amended Complaint-would be unreasonably burdensome. In major litigations such as this one, involving dozens of custodians and long periods of time, it is critical that the parties work together to define search criteria that will lessen the burdens of electronic discovery. See Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y.2006) (“Defined search strategies are even more appropriate in cases involving electronic data, where the number of documents may be exponentially greater” than cases involving traditional hard copy production); Pippins v. KPMG LLP, 279 F.R.D. 245, 251 (S.D.N.Y.2012) (“[Defendant] also demanded that Plaintiffs offer search terms to run against the electronic files on the hard drives in order to narrow the scope of material to be reviewed-which strikes me as not an unreasonable request.”). The Court therefore directs the parties to meet and confer in order to develop a narrowly tailored search protocol for each custodian or set of custodians whose ESI is to be searched. See Nunez v. City of New York, No. 11 Civ. 5845, 2013 WL 2149869, at *6 (S.D.N.Y. May 17, 2013) (directing parties in a class action regarding excessive use of force in City jails to “engage in a cooperative effort to set the parameters for these searches.”); Dunkin' Donuts Franchised Restaurants LLC v. Grand Ctr. Donuts, Inc., No. 07 Cv. 4027, 2009 WL 1750348, at *4 (E.D.N.Y. June 19, 2009) (directing parties to determine terms for each of defendants' employees whose emails were to be searched).
The City also asks that the motion be denied because the Plaintiffs have failed to meet and confer with the Defendants regarding their request to obtain ESI. (May 28 letter at 3). Federal Rule 37(a)(1) includes a requirement that any motion to compel contain “a certification that the movant has in good faith conferred or attempted to confer” with the person from whom discovery is sought. Rule 37.3 of this Court's Local Rules contains a similar requirement that attorneys for parties “attempt to confer in good faith” before bringing the dispute to the Court. Here, the Plaintiffs' letter-motion includes a reference to “subsequent meet and confers” at which the parties discussed production of ESI. (Pl.'s May 14 letter at 3.) Rather than delve into a factual dispute over whether the meet and confer sessions actually took place, it is enough to note that the letter-motion contained the certification required by Rule 37. Even if it did not, courts sometimes relax Rule 37's conference requirements in cases such as this one where the parties have communicated extensively in order to resolve discovery issues, see Trilegient Corp. v. Sitel Corp., 272 F.R.D. 360, 367 (S.D.N.Y.2010), and a court may rule on a motion to compel even where the meet and confer requirement is entirely lacking. E .g., Time Inc. v. Simpson, No. 02 Civ. 4917, 2002 WL 31844914, at *2 (S.D.N.Y. Dec. 18, 2002).
*6 Next, the City argues that it has fulfilled all of its discovery obligations because it has produced ESI associated with certain NYPD “decision-makers.” The City argues that since the primary issue in this case is whether there is a citywide policy regarding the number of criminal court summonses issued by the NYPD, only the ESI of high-ranking policymakers within the NYPD needs to be produced. (May 19 letter at 3–4.) While the City is correct that the Plaintiffs will need to demonstrate the existence of a policy, it does not follow that only the ESI of policymakers will be relevant to that showing. Although NYPD policy may be made by the Commissioner, chiefs, and borough commanders, it is carried out by individual officers as they interact with civilians throughout the city. The way those officers understand the function they are to perform, and the way that department policies are communicated to them by the captains, lieutenants, and sergeants who supervise them, is quite relevant to the ultimate question of whether the alleged summons policy exists. Additionally, lower-level officers in any organization may be more candid about dubious practices than the organization's more media-savvy executives. See Capitol Records, Inc. v. MP3tunes, LLC, 261 F.R.D. 44, 51 (S.D.N.Y.2009) ( “[I]t may well be ... that only the more senior present or former [ ] employees sent or received emails that are relevant to the issues in this case. By the same token, however, it also may be true that employees at that level took care not to say anything incriminating and that lower-level employees were less guarded in their email communications.” (citation omitted)).
In its letters, the City also makes a number of specific objections to certain categories of documents it is asked to produce. First, it argues against discovery into the ESI of supervisors named in officer grievance letters, arguing that “[t]he fact of a grievance alone does not indicate that ESI was created in connection with the grievance.” (May 19 letter at 4.) If there is no ESI from a given supervisor that is relevant to the issue of quotas, the City need not produce anything-after all, “a party cannot be compelled to produce that which he does not have.” Gropper v. David Ellis Real Estate, L.P., No. 13 Civ.2068, 2014 WL 642970, at *1 (S.D.N.Y. Feb. 14, 2014). That basic principle does not, however, relieve the City of its obligation to conduct a good faith search and produce what relevant ESI it does have. Similarly, the City objects to the Plaintiffs' request for the ESI of officers identified in its Rule 26 disclosures, arguing that “NYPD officers did not all have departmental e-mail accounts, nor is email a primary method of communication between rank and file members of service and their superiors.” (May 19 letter at 5.) As with the supervisors named in grievance letters, if the supervisors of the designated officers have no relevant ESI, nothing need be produced. The parties are reminded, though, that ESI is not limited to email, but also includes spreadsheets, word processing documents, and other information kept digitally.
*7 Next, the City objects to a search of the ESI of several officers who were witnesses or otherwise involved in Floyd v. City of New York, a recent litigation concerning the NYPD's controversial stop-and-frisk program. During that case, the Floyd plaintiffs “presented the testimony of [ ] officers who have been instructed to meet certain quotas and have been punished to one degree or another for not meeting those quotas.” Floyd v. City of New York, 813 F.Supp.2d 417, 448 (S.D.N.Y.2011). Although the City asserts that a review of the transcript of the Floyd case shows that the specific custodians whose ESI the Plaintiffs seek did not testify regarding quotas (May 28 letter at 2), they do not attach the transcripts or cite to where in the Floyd docket their assertion may be confirmed.
The Defendants also raise an objection to the Plaintiffs' request for the ESI of Chief Joseph Reznick, the head of the NYPD's Internal Affairs Bureau (“IAB”), and his predecessor Charles Campesi. The Plaintiffs assert that while in charge of the IAB, the two custodians “investigated complaints filed by officers about other officers” and cite to a 2014 New York Daily News article discussing a memo circulated by Chief Campesi cautioning officers against making arrests just to earn overtime. (Pl.'s May 26 letter at 3–4.) Both sides have a point-investigating illegal practices by officers is the IAB's primary function, but the extraordinarily sensitive nature of the Bureau's work means that the ESI of Chiefs Campesi and Reznick will contain confidential information about internal police investigations that should not be shared outside the IAB, let alone to third parties. While some search of the ESI is warranted, the parties are directed to meet and confer in order to develop a restrictive protocol wherein the IAB Chiefs' electronic documents are searched only for information concerning alleged quota complaints and documents concerning Chief Campesi's memo. Any responsive documents shall be shared with a minimum number of members of each side's legal team.
In sum, the Plaintiffs are entitled to all relevant and nonprivileged documents within the ESI of the custodians specifically designated in their May 26 letter. They may also obtain the ESI of custodians in the three open-ended categories from the letter-supervisors named in grievance letters, officers heard on or mentioned in audio recordings, and supervisors of alleged whistleblowers-not to exceed 25 in total. The parties shall meet and confer in order to set a search protocol that is narrowly tailored to the issues of this case and minimizes the burden on the Defendants. The parties shall formulate a special and more restrictive protocol for the ESI of the Internal Affairs Bureau chiefs, which recognizes the extraordinarily sensitive nature of the information and keeps responsive documents before the absolute minimum number of eyes. The motion to compel is thus granted in part and denied in part.
*8 The Plaintiffs' motion to compel the deposition of Officer Boylan is denied as moot. The Plaintiffs' motion to compel the production of Electronically Stored Information is granted in part and denied in part, as discussed above. The Defendants' motion for a stay of the case is denied.
It is so ordered.

Footnotes

As the letter-motion seeking a stay was not filed publicly and the parties have indicated they would like the subjects discussed within kept confidential, the portion of this opinion dealing with the motion to stay will be filed under seal.
On June 29, 2015, the Plaintiffs filed a letter-motion seeking sanctions, alleging spoliation by the City. This opinion is not concerned with that motion, which has been set for a hearing in the Fall.