JARRETT JENKINS, EMMOT STEELE, FRANCES ROYAL, CHARMAINE WHYTE, and DANAI EWAN, on behalf of themselves and all others similarly situated, Plaintiffs, v. NATIONAL GRID USA SERVICE COMPANY, INC., KEYSPAN GAS EAST CORPORATION, NIAGARA MOHAWK POWER CORPORATION, and THE BROOKLYN UNION GAS COMPANY, Defendants 15-CV-1219(JS)(GRB) United States District Court, E.D. New York Filed September 16, 2019 Counsel APPEARANCES For Plaintiffs: John T. Nicolaou, Esq., Lieff Cabraser Heimann & Bernstein LLP, 250 Hudson Street, 8th Floor, New York, New York 10003, Joseph S. Tusa, Esq., Tusa, P.C., 53345 Main Road, Suite 10-1, Southhold, New York 11971 For Defendants: Richard H. Brown, Esq., Kevin J. Duffy, Esq., Day Pitney LLP, 7 Times Square, New York, New York 10036 Seybert, Joanna, United States District Judge MEMORANDUM & ORDER *1 The Court assumes familiarity with the facts and extensive procedural history of this case and discusses them only as relevant to this appeal. Much of the protracted discovery process has involved audio files--by the parties’ estimates, “millions” of files. (Mar. 2019 Tr., D.E. 529, 5:6-13.) Briefly, after discussion and exchanges between the parties, Plaintiffs sought to preclude Defendants from using approximately 6.85 million audio files (the “Witness files”) to oppose Plaintiffs’ class certification motion.[1] (Letter Mot. for Sanctions, D.E. 577). Defendants opposed Plaintiffs’ motion to preclude. (Opp. To Mot., D.E. 582.) Defendants seek to use the Witness files to show that class members consented to their calls, an important issue in this case. On July 10, 2019, Magistrate Judge Gary R. Brown ruled that the Witness files were precluded for purposes of class certification but could be used by Defendants substantively for their defense. He allowed Defendants to use recordings as to named Plaintiffs only in opposing the class certification motion. (July 2019 Tr., D.E. 589, 62:20-66:11.) After hearing argument from both sides, Judge Brown noted his concern that Plaintiffs did not have equal access to the Witness files. (July 2019 Tr. 63.) He ruled that “use of Witness recordings [is limited] to named Plaintiffs only.” (July 2019 Tr. 62:23-24.) He explained that he was “not saying [Defendants] can’t use them later” in connection with a defense or a motion to decertify a class. (July 2019 Tr. 64:7-17.) Judge Brown also indicated that he would revisit the issue upon Plaintiffs’ service of their class definitions. (July 2019 Tr. 62:20-24, 66:1-8.) Defendants filed this appeal from Judge Brown’s decision. (Defs. Appeal of Magistrate Dec., D.E. 590.) Plaintiffs opposed (Pls. Mem. in Opp., D.E. 595) and Defendants replied (Defs. Reply, D.E. 601). Defendants also moved for reconsideration[2] of the July 10, 2019 Minute Order (see July 10, 2019 Minute Order; Defs. Mot. for Recons.), which Plaintiffs opposed (Pls. Resp. to Mot., D.E. 593). On September 3, 2019, Judge Brown denied Defendants’ motion for reconsideration. (Sept. 2019 Tr., 92-93.) Upon reconsideration, Judge Brown noted that there was a “difference between is there a class and who gets into the class[.] Isn’t there a difference there? In other words, [Defendants] don’t need the [Witness] files to try to defeat class certification.” (Sept. 2019 Tr. 83:18-21.) Judge Brown concluded that “[b]alancing the prejudice versus the value of allowing [D]efendants to pursue this would result in additional delays and costs which ... aren’t necessary at this juncture.” (Sept. 2019 Tr. 93:5-7.) *2 For the following reasons, Judge Brown’s July 10, 2019 order is AFFIRMED. “Discovery matters are generally considered non-dispositive of litigation.” Milan v. Sprint Corp., No. 16-CV-4451, 2018 WL 1665690, at *2 (E.D.N.Y. Apr. 6, 2018). Magistrate judges “ ‘have broad discretion in resolving nondispositive matters.’ ” Carter v. Logan Bus Co., Inc., No. 15-CV-5217, 2016 WL 5231800, at *1 (E.D.N.Y. Sept. 21, 2016) (quoting Gorman v. Polar Electro Inc., 137 F. Supp. 2d 223, 226 (E.D.N.Y. 2001)). However, “when a magistrate judge rules on a non-dispositive matter, ‘the district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law.’ ” Bachayeva v. Americare Certified Special Servs., Inc., No. 12-CV-1466, 2013 WL 4495672, at *1 (E.D.N.Y. Aug. 20, 2013) (quoting Fed. R. Civ. P. 72(a)). A magistrate decision is clearly erroneous when, after reviewing the entire record, the district court “ ‘is left with the definite and firm conviction that a mistake has been committed.’ ” Feliciano v. Cty. of Suffolk, No. 04-CV-5321, 2009 WL 290469, at *1 (E.D.N.Y. Feb. 4, 2009) (quoting E.E.O.C. v. First Wireless, Inc., 225 F.R.D. 404, 405 (E.D.N.Y. 2004)). Because “[m]agistrate judges are best qualified to judge the entire atmosphere of the discovery process, [their decisions] resolving a discovery discourse between litigants should be afforded substantial deference and be overturned only if found to be an abuse of discretion.” Milan, 2018 WL 1665690 at *2 (internal quotation marks and citations omitted). As to the proper scope of discovery, Federal Rule of Civil Procedure Rule 26(b)(1) explains that “parties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Here, in reviewing the entire record, and giving Judge Brown’s July 10, 2019 non-dispositive Order substantial deference, this Court finds that it is not clearly erroneous or contrary to law and was not an abuse of discretion. The ruling is limited to the class certification stage, as Judge Brown specifically stated that he would not preclude Defendants from using the material to aid their substantive defense or craft a potential motion to decertify a class. See Milan, 2018 WL 1665690 at *4 (“It is worth noting that [the Magistrate Judge] significantly constrained the scope of Plaintiff’s original discovery request” and “tailored the initial broad request to a scope that is now proportional to the needs of the case”). Judge Brown also recognized the potential prejudice to Plaintiffs if they did not have full access to the Witness files and struck a balance: “The plaintiffs didn’t really have full access to these. So I think for now this is a reasonable compromise.” (July 2019 Tr. 63:9-10.) *3 Defendants concede that they are unable to turn over all the audio files. They can only provide metadata and allow Plaintiffs to inspect and copy individual files. (July 2019 Tr., 40:25-42:19.) Plaintiffs have represented that this process is extremely slow and difficult. (Pls. Mem. in Opp. at 5-7 (“To date, Defendants have produced just one Witness file (for Plaintiff Royal), and it took them six months to do so.”).) The Court agrees with Judge Brown that Defendants have not done anything wrong, and that counsel has attempted to turn over as much material as possible. (See July 2019 Tr. 47:21-24.) However, the nature of the recording systems makes it difficult for Plaintiffs to obtain discovery, and Judge Brown reasonably limited the use of the Witness files at this juncture. Judge Brown has been extensively involved in the numerous and ongoing discovery issues in this matter. He has held approximately twenty-five conferences and discussed the parties’ requests at length.[3] He is “best qualified to judge the entire atmosphere of [this] discovery process.” Milan, 2018 WL 1665690 at *2. The Order appealed from is AFFIRMED. SO ORDERED Footnotes [1] Judge Brown set the schedule for the class certification motion and the parties are subject to the bundling rule. Plaintiffs served but did not file their motion for class certification on Defendants on July 31, 2019. (D.E. 592.) Currently, Defendants must respond by December 15, 2019, and Plaintiffs’ reply is due on February 15, 2019. (Sept. 2019 Tr., D.E. 611, 73:15-21.) [2] In filing their motion for reconsideration, Defendants noted that they “style this a motion for reconsideration based on the Court’s statement that Defendants could re-address the Witness audio file issue after service of the Plaintiffs’ putative class definitions. Given the importance of the July 10 Order and because the Federal Rules allow only 14 days to object to a Magistrate Judge’s ruling, Defendants also filed an Objection with Judge Seybert (ECF No. 590) today in an abundance of caution to preserve their rights.” (Defs. Mot. for Recons., D.E. 591, at 1 n.1.) [3] The Court notes that the facts and arguments here are similar to those considered in its May 20, 2019 Memorandum and Order affirming another of Judge Brown’s discovery rulings related to Defendants’ use of audio files during the class certification process. (See May 20, 2019 Order, D.E. 562.)