Opinion
00 Civ. 5753 (LAK)
April 27, 2001
ORDER
A small part of the acrimonious background of this case and the utterly dysfunctional relationship among counsel is set forth in the Court's order of April 19, 2001, which required the submission, on or before April 24, 2001, of a stipulation resolving outstanding discovery disputes to the extent possible or, in default of agreement, of letters clearly enumerating the outstanding issues and setting forth the parties' respective positions on them. No stipulation has been filed. The Court instead has received letters from both sides. The matters raised therein are resolved as follows:
1. Plaintiff complains of the Port Authority's failure to answer to his satisfaction two interrogatories purportedly quoted at the bottom of page 1 of Mr. Mitchell's letter dated April 24, 2001 (the "Mitchell Letter"). There is no doubt that at least some of the requested information has been provided, and the Port Authority's letter of April 25, 2001 (the "Lee Letter") details the information provided and practical difficulties allegedly encountered in providing it. The Port Authority, however, objects to the time period for which the information is sought (ten years) and to being required to create information that it does not already maintain. It further objects to changes that the plaintiff apparently has made informally to his information requests.
The two interrogatories quoted at the bottom of page 1 of the Mitchell Letter appear to seek information relevant to the issues in suit. To the extent the Port Authority has the information and has not previously turned it over, it shall do so not later than May 4, 2001. It may, to the extent appropriate, avail itself of the right to respond by producing business records as contemplated by Rule 33(d). In any case, it shall provide sworn answers to these interrogatories, not later than May 4, 2001, incorporating, if need be, information previously provided or stating that all or specific parts of the information sought may be determined by reference to documents provided. Plaintiff is entitled to a sworn statement authenticating the information. On the other hand, the time period for which the information is sought is excessive; the interrogatories shall be answered only for the period January 1, 1994 to date. Further, the Port Authority need not respond to any permutations or variations on the quoted interrogatories that may have been propounded informally.
2. Plaintiff complains that the Port Authority has refused to respond to two requests contained in Plaintiff's Fourth Request for Production of Documents, which are quoted at the third page of the Mitchell Letter.
The first of the two requests pertains to transcripts of depositions in other cases in which Mr. Myers has testified, and this is not the first time this issue has been before the Court. The Port Authority maintains that it has furnished all such transcripts to the extent it has been able to locate them with reasonable effort, and the Court has no reason to doubt that representation. On the other hand, plaintiff long has contended that there are transcripts in other cases of which his counsel is aware. So the Court directed plaintiff's counsel to provide the Port Authority with a list of the cases of which he is aware, thus enabling the Port Authority more readily to find any such transcripts. But plaintiff's counsel has not done so. Certainly it would be unreasonable in all the circumstances to require this large public agency to search all its litigation files for a lengthy period on the off chance that a file on a case that Mr. Myers no longer recalls having testified in contains a transcript. The parties and the Court have spent enough time on this issue. The Port Authority's response to the first request, in the circumstances, is sufficient.
The second of the two requests relates to documents prepared by Mr. Myers pertaining to the Port Authority's anti-discrimination policies. The Port Authority's response suggests that it complied with the request, but does not say so in so many words. The Port Authority therefore is ordered to respond to the request in writing on or before May 4, 2001. The response shall indicate whether and to what extent it has complied with the request and, if has not done so fully, shall be accompanied by any remaining documents there called for.
3. Plaintiff complains that the Port Authority has not responded to his Fourth Set of Interrogatories. The Port Authority objects that this violates Fed.R.Civ.P. 33 and Local Civ.R. 33.3, as plaintiff has served over 50 interrogatories (not counting discrete sub-parts). Moreover, it objects to the plaintiff's attempt to require it to create lists of documents in addition to producing the documents themselves.
These interrogatories, particularly coupled with plaintiff's insistence on the creation of lists of documents in addition to the production of the documents themselves, are abusive. The Fourth Set of Interrogatories is stricken.
4. Plaintiff now demands a deposition of one Cedric Fulton. The Port Authority resists, contending inter alia that it already has produced or agreed to produce 18 witnesses.
On April 17, 2001, the Court directed the parties to submit a complete list of all remaining discovery required in the case. The parties failed to do so, but plaintiff's counsel submitted a list of depositions that he wished to conduct. Mr. Fulton, although he was one of plaintiff's supervisors and thus well known to him, was not on that list. Moreover, the number of depositions sought is unreasonable in view of the issues in suit. Accordingly, plaintiff may not conduct a deposition of Mr. Fulton.
5. Plaintiff's letter now adds a request for transcripts of prior trial and deposition testimony by Mr. Butcher. So far as his letter discloses, this is an entirely new request. In view of his failure to include it in his response to the April 17 order, production of these materials, which have not been shown to be relevant in any case, is denied.
6. Next, plaintiff wishes to invite spectators to the deposition of Mr. Jeff Green., the Port Authority's general counsel. It is perfectly evident, particularly given the conduct in which plaintiff's counsel has engaged previously, that the purpose of doing so is to harass, humiliate or intimidate the witness. Plaintiff's counsel has not even offered a reason for permitting spectators to attend. Accordingly, the deposition of Mr. Green will be conducted with no one present but counsel of record, the witness, and the stenographer.
7. The Port Authority complains that plaintiff has not provided expert reports from plaintiff's physicians and has refused or failed to provide medical authorizations, which were requested in October 2000. Plaintiff has not addressed the issue.
All requested medical authorizations shall be furnished to the defendants no later than May 3, 2001 failing which all evidence regarding plaintiff's physical and mental condition will be precluded. No expert testimony will be received from any expert witness for whom plaintiff has not provided an expert report on or before May 3, 2001.
8. The Port Authority complains that plaintiff has not responded completely or in good faith to its interrogatories seeking the identities and other information regarding witnesses.
Like everything else in this case, this issue has a history. On January 12, 2001, the Court held a conference to address various discovery matters that were raised by counsel in letters. Among other things, the Port Authority complained that plaintiff had not yet responded to their interrogatories and document requests served in October 2000 which, among other things, sought the identities of prospective witnesses.
Following the conference, the Court entered a written order requiring plaintiff to respond no later than January 15, 2001. Plaintiff, however, did not comply with the order, as his counsel later essentially admitted. (Tr., 4/17/01, at 6) Indeed, when challenged on the point on April 17, he claimed — in the face of the written order requiring responses by January 15 — that the Court had said that the Port Authority could ask plaintiff the names of his witnesses and his deposition (a truism), thus implying that he was excused from complying with the written order. The implication is absolutely false. Indeed, it makes no sense, as the conference of January 12, 2001 preceded the written order.
The April 17 conference evidently led plaintiff's counsel to serve his incomplete responses to the interrogatories that were due three months earlier. Last week he came up with a list of 90 witnesses which, given the nature of the case, raises a real possibility of bad faith circumvention of the discovery process.
In all the circumstances, it appears desirable to have a more complete record before ruling on the Port Authority's request to preclude plaintiff from calling any of the 90 witnesses. The Port Authority may raise that matter by a formal motion for sanctions pursuant to Rules 16 and 37.
SO ORDERED.