Opinion
10 Civ. 00051 (AJN)(KNF)
05-29-2012
NONIE PEGORARO, Plaintiff, v. ERNESTO MARRERO, INDIVIDUALLY AND IN HIS CAPACITY AS CORPORATE COMPLIANCE OFFICER; NEW YORK CITY HEALTH AND HOSPITAL CORPORATION; ALAN AVILES, PRESIDENT, NEW YORK CITY HEALTH AND HOSPITAL CORPORATION; CITY OF NEW YORK, Defendants.
MEMORANDUM AND ORDER
Background
On August 25, 2011, the Court denied, without prejudice, the plaintiff's motion to compel the defendants to respond to discovery requests and produce witnesses for oral examination, namely, Dr. Ramanathan Raju ("Dr. Raju"), Alan Aviles ("Aviles"), Lisa Lee ("Lee") and Louis Panarella ("Panarella"), based on the plaintiff's failure to comply with Local Civil Rule 7.1 of this court. The plaintiff renewed her motion. On November 2, 2011, the Court denied that part of the motion seeking to compel the defendants to produce witnesses for oral examination, determining that "[a]bsent evidence that the witnesses at issue were given reasonable written notices stating the time and place of their depositions, as required by Rule 30(b)(1), or that they failed to comply with subpoenas compelling their attendance, pursuant to Rule 45, the Court has no authority to compel witnesses, including the parties, to attend any depositions which were neither noticed nor for which subpoenas were issued." The Court noted in its November 2, 2011 order: "It appears from the plaintiff's motion that the plaintiff's notices of deposition were cancelled by the plaintiff to accommodate the defendants' schedule and no subsequent notices of deposition were given to the four witnesses at issue here: Aviles, Dr. Raju, Lee and Panarella."
During the telephonic conference, conducted on April 4, 2012, the plaintiff's counsel explained that he noticed the depositions of Aviles, Dr. Raju, Lee and Panarella, for March 2011. The movants' counsel asked to reschedule the depositions, which was accommodated by the plaintiff, but subsequently, after the discovery deadline expired, the movants' counsel informed the plaintiff's counsel that the four witnesses would not be produced for their depositions. The plaintiff's counsel explained that he was misled into believing that he could depose the four witnesses and that, by agreeing to postpone the depositions, he fell into a trap, because both the dates for which the depositions were noticed and the discovery deadline had expired when he was told that the four witnesses would not be produced. During the April 4, 2012 telephonic conference, the movants' counsel indicated his intention to make a motion in connection with the contemplated depositions of the four witnesses. As a result of the discussion had during the telephonic conference, on April 6, 2012, the Court ordered that "the time for the parties to complete pretrial discovery activities is enlarged to May 16, 2012, solely to permit the plaintiff to attempt to examine orally Alan Aviles, Dr. Ramanathan Raju, Lisa Lee, and Louis Panarella."
On April 10, 2012, the plaintiff served Aviles, Lee and Panarella with subpoenas to testify at a deposition. Before the Court is a motion, made by Aviles, Lee and Panarella, "pursuant to Rules 26, 37, and 45 of the Federal Rules of Civil Procedure . . . to quash subpoenas seeking the depositions of defendant Alan Aviles and non-parties Lisa Lee and Louis Panarella." The plaintiff opposes the motion and seeks an award of "reasonable attorney's fees."
Movants' Contentions
The movants contend that the subpoenas served on the non-parties Lee and Panarella should be quashed because the plaintiff did not provide any written notice of the non-party subpoenas to the defendants, as required by Rule 30(b)(1) of the Federal Rules of Civil Procedure. They maintain that the motion to quash should be granted because the law of the case doctrine and the plaintiff's failure to object, as provided by Rule 72 of the Federal Rules of Civil Procedure, to the Court's November 2, 2011 order denying "her prior attempts to depose" Aviles, Lee and Panarella, bar the instant subpoenas.
The movants assert that the subpoena directed to Aviles should be quashed because the plaintiff failed to show that he "possesses any personal knowledge of plaintiff's termination, let alone unique personal knowledge concerning her termination." In their memorandum of law, the movants contend that Aviles, as president of the New York City Health and Hospitals Corporation ("HHC"), "is responsible for the largest municipal healthcare organization in the country with an annual budget of $6.7 Billion." According to the movants, "HHC consists of 11 acute care hospitals, 4 skilled nursing facilities, 6 large diagnostic and treatment centers, more than 80 community based clinics, and serves approximately 1.3 million patients a year." The movants contend that, "[n]otwithstanding the enormous burden of overseeing such a large and complex organization, and lack of any evidence President Aviles possesses unique personal knowledge," the plaintiff seeks to depose Aviles "simply as a measure of abusing HHC and President Aviles." They maintain that the plaintiff's assertion, in her declaration in opposition to the instant motion, that she "reported and interfaced" with Aviles on a regular basis, "contradicts her own deposition testimony" because she "never testified that President Aviles was her supervisor or that she reported to him," and she does not allege that he was involved in her termination. The movants assert that the plaintiff should have deposed HHC's general counsel, Richard Levy ("Levy"), and HHC's senior vice president, Frank Cirillo ("Cirillo"), because the plaintiff's employment termination was discussed with them, and she appealed the termination decision to Cirillo. The movants contend that the "[p]laintiff's unrelenting attempts to depose President Aviles instead of Mr. Levy, a witness with greater and more relevant knowledge, necessitates the conclusion that plaintiff seeks the deposition of President Aviles, not for obtaining relevant information, but to simply depose President Aviles."
The movants also contend that Lee and Panarella cannot be deposed because "any questioning Ms. Lee and Mr. Panarella about their duties or investigations they worked on will require them to testify about matters protected by the law enforcement privilege." According to the movants, the plaintiff's attempt to obtain "OIG's [Office of Inspector General] files concerning any complaints plaintiff filed with the OIG" was "expressly rejected" by the district court when it "limited plaintiff's discovery requests 'to OIG findings relevant to plaintiff[']s claims at issue in this action.'" By doing so, the movants contend, the district court "protected open and active investigations and refused access to any documents that may disclose the contents of those investigations or investigative techniques which would compromise future investigations." Moreover, "allowing questioning relating to any OIG investigation will permit anyone interested in the outcome of OIG's investigations to interfere with, and possibly alter, the findings of that investigation." The movants contend that the "potential harm that would be visited upon OIG and its need to conduct independent, reliable investigations free of outside influence would thus be substantially destroyed."
Attached to the movants' motion is Lee's declaration, dated August 19, 2011, "made in opposition to plaintiff's motion to compel," in which she stated that she is "a Deputy Inspector General for the Office of Inspector General of the New York City Health and Hospitals Corporation . . . ." According to Lee, "[t]he OIG operates independently within HHC and is responsible for investigation and elimination of corrupt or other criminal activity, conflict of interest, and unethical conduct by HHC officers and employees." Lee explained that the plaintiff filed "multiple complaints with the OIG alleging serious misconduct," which "are all being investigated and none of those investigations is closed," as well as "an additional complaint alleging that her employment was terminated in retaliation for the prior complaints she filed with the OIG," which is also being investigated. In its reply, the movants contend that "OIG completed its investigation into plaintiff's complaint that she was terminated for filing complaints with the OIG and the findings were produced to plaintiff in a report, dated March 16, 2012, in accordance with the February 21st order."
Plaintiff's Contentions
The plaintiff contends that the subpoenas were served properly on the movants and, since all movants are represented by the same counsel, counsel received notice of the subpoenas when they were "filed with the Court and the Certification of Service was filed with the Clerk of the Court." The plaintiff maintains that the subpoenas are timely and were served within the discovery period.
The plaintiff maintains that Aviles's "deposition testimony is necessary and relevant in order to prosecute the Plaintiff's case." That is so because the plaintiff's responsibilities and daily tasks required her to be in contact with Aviles "so as to get approval for protocols, contract updates, contract status, among others," and she "reported and interfaced" with him daily as part of her job. According to the plaintiff, she "also wrote, emailed and contacted" Aviles and she "sought and received approval for all her audits from" him. In support of her opposition to the movants' motion, the plaintiff submitted her declaration, stating that "Aviles personally approved my termination when he knew or should have known that the termination was motivated by retaliation." The plaintiff contends that Aviles "has unique knowledge and relevant information regarding the reasons that Plaintiff was terminated and regarding her employment at HHC." Moreover, the plaintiff contends, Levy and Cirillo are attorneys and they "are not parties to be deposed in this action," and Cirillo was not involved "until after her termination."
The plaintiff maintains that Lee and Panarella are not non-parties because "they are "officers and employees of Defendant HHC." According to the plaintiff, the OIG report resulting from a three-year investigation by Lee and Panarella is confidential and will be used by the defendants in further proceedings. Given that the plaintiff considers that report "dubious, highly misleading and very passive in its analysis of the facts," the plaintiff "should have the right to probe into OIG's investigation." The plaintiff contends that Lee and Panarella are not protected by the law enforcement privilege because Lee's declaration, submitted in support of the movants' motion, "contained no specifics and did not include any explanation of how the law enforcement investigative privilege applies to the information sought;" it "merely refers to generalities and speculates unconvincingly about undefined harm that will be visited upon Defendants."
The plaintiff seeks sixty days from the time of the Court's decision on this motion to complete her discovery and "an order directing defendants not to initiate any other discovery motion without complying with the meet and confer requirement" of the Federal Rules of Civil Procedure. According to the plaintiff, the defendants "have engaged in an unnecessary motion that has stalled discovery."
Legal Standard
"[T]he scope of discovery under Fed. R. Civ. P. 26(b) is very broad, 'encompass[ing] any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'" Maresco v. Evans Chemetics, Div. of W. R. Grace & Co., 964 F.2d 106, 114 (2d Cir. 1992) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389 (1978)). Rule 30 of the Federal Rules of Civil Procedure provides: "A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2)." Fed. R. Civ. P. 30(a)(1). "A party who wants to depose a person by oral questions must give reasonable written notice to every other party." Fed. R. Civ. P. 30(b)(1).
A party or any person from whom discovery is sought may move for a protective order . . . The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . (A) forbidding the disclosure or discovery."An order precluding the deposition of a witness is of course the exception rather than the rule in federal court, and in order to obtain such relief, the party resisting discovery must show 'good cause.'" Martin v. Valley Nat'l Bank of Arizona, 140 F.R.D. 291, 314 (S.D.N.Y. 1991) (citations omitted). "The party requesting a protective order must make a specific demonstration of facts in support of the request as opposed to conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one." Alexander v. F.B.I., 186 F.R.D. 60, 64 (D.D.C. 1998). "Rule 37(a)(5) applies to the award of expenses," in connection with an application for a protective order. Fed. R. Civ. P. 26(c)(3).
Fed. R. Civ. P. 26(c)(1).
Rule 45 of the Federal Rules of Civil Procedure provides for a subpoena to command a person to attend a deposition. See Fed. R. Civ. P. 45(a)(1)(A)(iii). "On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; . . . (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Fed. R. Civ. P. 45(c)(3)(A).
"The burden of persuasion in a motion to quash a subpoena and for a protective order is borne by the movant." Jones v. Hirschfeld, 219 F.R.D. 71, 74-75 (S.D.N.Y. 2003). A determination to grant or deny a motion for a protective order or a motion to quash a subpoena is discretionary. See Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973); In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 68 (2d Cir. 2003).
"A witness ordinarily cannot escape examination by denying knowledge of any relevant facts, since the party seeking to take the deposition is entitled to test the witness's lack of knowledge." 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2037 (3d ed. 2010). "A professed lack of knowledge typically does not constitute good cause and is insufficient to warrant the quashing of deposition." Alexander, 186 F.R.D. at 64; see Naftchi v. New York Univ. Med. Ctr., 172 F.R.D. 130, 132 (S.D.N.Y. 1997) ("[I]n ordinary circumstances, [it] does [not] matter that the proposed witness is a busy person or professes lack of knowledge of the matters at issue, as the party seeking the discovery is entitled to test the asserted lack of knowledge.").
District courts in the Second Circuit that recognize higher scrutiny for deposing high-ranking government officials developed the following rule: "A party may only conduct such a deposition upon a showing that the deposition is necessary in order to obtain relevant information and that it would not significantly interfere with the ability of the official to carry out his governmental responsibilities." Martin, 140 F.R.D. at 314. Nonetheless, "depositions of senior officials should be allowed if they 'possess[] particular information necessary to the development or maintenance of the party's case' which would not otherwise be reasonably obtainable." Id.
The federal law enforcement investigative privilege is a qualified privilege whose purpose is "to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation." United States v. Myerson, 856 F.2d 481, 483-84 (2d Cir. 1988). "[T]he party asserting the law enforcement privilege bears the burden of showing that the privilege applies . . . ." Dinler v. City of New York, 607 F.3d 923, 944 (2d Cir. 2010). "To meet this burden, the party asserting the law enforcement privilege must show that the [discovery sought] contain[s] information that the law enforcement privilege is intended to protect." Id. The law enforcement privilege does not apply only to ongoing investigations, but also "applies where the [movant] demonstrates that the disclosure of information, such as law enforcement 'techniques and protocols,' would 'jeopardize future criminal investigations.'" MacNamara v. City of New York, 249 F.R.D. 70, 79 (S.D.N.Y. 2008) (citation omitted).
A court's determination that the law enforcement privilege applies creates a strong presumption against disclosure. See Dinler, 607 F.3d at 945. To rebut this presumption, "the party seeking disclosure must show (1) that its suit is 'non-frivolous and brought in good faith,' (2) that 'the information sought is [not] available through other discovery or from other sources,' and (3) that the information sought is 'importan[t]' to the party's case." Id. (citation omitted). However, the ultimate "burden of persuasion rests on the party seeking to prevent disclosure." MacNamara, 249 F.R.D. at 79. "[T]he public interest in nondisclosure must be balanced against the need of a particular litigant for access to the privileged information." Dinler, 607 F.3d at 945 (citation omitted). "[D]isclosure is required only if [the] compelling need [for the information] outweighs the public interest in nondisclosure." Id.
Application of Legal Standard
Failure to Give Notice of the Non-party Subpoenas to the Defendants
Although a subpoena under Rule 45 is unnecessary to take Aviles's deposition because he is a party to the action, the plaintiff served her subpoenas to testify at a deposition on Aviles, as well as non-parties Lee and Panarella, pursuant to Rule 45 of the Federal Rules of Civil Procedure, on April 10, 2012. The plaintiff's failure to provide written notice of the subpoenas to the defendants, prior to serving the subpoenas, without more, is insufficient to warrant quashing the subpoenas in the circumstances of this case. That is so because Aviles, Lee and Panarella are represented by the same counsel, who was on notice of the intent to depose Aviles, Lee and Panarella well before service of the subpoenas was effected on April 10, 2012. During the April 3, 2012 conference, the movants' counsel indicated that he would make a motion in connection with the depositions at issue, although he did not indicate what type of motion.
The purpose of providing reasonable written notice of a subpoena commanding a person to appear and be deposed by oral questions is to give every other party the opportunity to cross-examine the deponent. See Spaeth v. Warner Bros. Pictures, 1 F.R.D. 729, 731 (S.D.N.Y. 1941). The purpose of providing reasonable written notice to every other party prior to serving a subpoena duces tecum, issued pursuant to Rule 45(a)(1)(C), is "to permit each party to prepare more effectively for the deposition." 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, supra § 2106; see Rule 45 Advisory Committee Notes, 1991 Amendment ("The purpose of [prior] notice is to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents and things. Such additional notice is not needed with respect to a deposition because of the requirement of notice imposed by Rule 30 or 31."). The movants' citation to Cole v. City of New York, No. 10 Civ. 5308, 2012 WL 1138570 (S.D.N.Y. Apr. 5, 2012) is unavailing because that case involved subpoenas duces tecum.
Here, the subpoenas were not subpoenas duces tecum, but subpoenas commanding testimony at a deposition. Notice of a subpoena duces tecum or its attachment is required to designate the materials commanded to be brought to a deposition. See Fed. R. Civ. P. 30(b)(2). However, where, as here, a notice of the deposition is not given pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, "[t]he notice of taking of a deposition is not required to state the subject matter concerning which the examination will be made," 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, supra § 2106. Thus, any concerns associated with a failure to comply with Rule 30's requirement that reasonable written notice be provided to the parties prior to serving a subpoena are attenuated when the subpoena commands testimony at a deposition only. Moreover, other factors attenuate the defendants' concerns related to the plaintiff's failure to provide Rule 30 notice to them prior to serving the subpoenas on the defendants, including that: (a) counsel had actual knowledge of the depositions; (b) the Court enlarged the time to complete discovery to May 16, 2012, for the sole purpose of permitting the plaintiff to attempt to examine Aviles, Lee, Panarella and Dr. Raju; (c) service of the subpoenas was made on the movants' counsel; and (d) the movants did not claim prejudice that might attend from the plaintiff's failure to provide the defendants written notice of the subpoenas prior to and apart from their service. Therefore, this defect alone does not warrant quashing the subpoenas.
Law of the Case and the Plaintiff's Failure to Object to the November 2, 2011 Order
The movants' contention, that "there are no 'cogent' or 'compelling' reasons to deviate from the Court's November 2, 2011 decision denying plaintiff the depositions of the three individuals who plaintiff now subpoenas for deposition," is disingenuous. The Court's November 2, 2011 order denied the plaintiff's motion to compel depositions, without prejudice, because, based on the record before it, the Court lacked the authority to compel the witnesses to attend any depositions; it did not deny the plaintiff the opportunity to conduct depositions. Moreover, notwithstanding the November 2, 2011 denial of the plaintiff's motion to compel the depositions, the Court's subsequent order of April 6, 2012, permitted expressly the plaintiff to attempt to examine the movants. The movants' argument that the November 2, 2011 denial of the plaintiff's motion to compel depositions, to which the plaintiff did not object, is the law of the case is meritless because of the subsequent, April 6, 2012 order, permitting the plaintiff to attempt to examine the movants. The April 6, 2012 order was a direct result of the discussion had during the telephonic conference on April 4, 2012, when the plaintiff informed the Court that prior to the expiration of the original deposition notices and discovery deadline she agreed to accommodate the movants' requests to reschedule their depositions after being misled into believing that she would be able to depose the movants, and subsequently, after the discovery deadline expired she was told that the movants would not be produced for the depositions. The movants did not deny the plaintiff's factual recitation of the events either during the telephonic conference or in their motion papers. Moreover, the movants cannot argue that the November 2, 2011 order denying the plaintiff's motion to compel depositions is the law of the case, where the subsequent April 6, 2012 order permitted the plaintiff to notice the depositions, and the movants failed to object to the April 6, 2012 order, as provided by Rule 72 of the Federal Rules of Civil Procedure. Accordingly, the movants' argument, that the subpoenas should be quashed because of the law of the case doctrine and the plaintiff's failure to appeal the denial of her prior attempts to depose the movants, is meritless and rejected.
Subpoena on Aviles
Aviles submitted no affidavit representing that he lacks "unique personal knowledge" of the issues concerning the plaintiff's claims and he provided no evidence to demonstrate that the deposition would interfere significantly with his ability to perform his duties. Contrary to the movants' contention, the plaintiff did not state in her declaration that she reported to Aviles. The plaintiff's statement that she "reported to the Executive Vice President Corporate Chief Medical Officer and interfaced with the following HHC Departments/Offices: HHC President, Alan Aviles," is corroborated by her August 26, 2008 performance evaluation, signed by Dr. Raju. The plaintiff's contention that Aviles was, in some fashion, involved in terminating her employment is corroborated by an e-mail message Levy sent to defendant Ernesto Marrero on "5/26/2009," stating: "Your proposed action is approved by me and supported by the president. You may proceed." Thus, not only did Aviles fail to show he has no "unique personal knowledge" about the issues concerning the plaintiff's claims, but the plaintiff presented evidence that Aviles supported her termination and that she interacted and communicated with him in connection with specific job duties she performed. The plaintiff showed that Aviles has particular information that she cannot obtain otherwise, due to the nature of her relationship with him. See Martin, 140 F.R.D. at 314. Aviles presented no evidence establishing good cause exists for issuing an order barring his deposition to protect him from "annoyance, embarrassment, oppression, or undue burden or expense," as required by Rule 26(c)(1) of the Federal Rules of Civil Procedure. Additionally, although the movants' notice of motion indicates that it is made pursuant to Rule 26, the movants failed to include a certification that they conferred in good faith or attempted to confer with other affected parties in an effort to resolve the dispute without court action, as required by Rule 26(c)(1). For the foregoing reasons, Aviles's motion is denied.
Subpoenas on Lee and Panarella
Lee and Panarella assert that they are shielded from being deposed by the law enforcement privilege, and that the district court, by its February 21, 2012 order, Docket Entry No. 54, "protected open and active investigations and refused access to any documents that may disclose the contents of those investigations or investigative techniques which would compromise future investigations." Whether the law enforcement privilege protects specific documents sought by the plaintiff is not relevant to an inquiry into whether the assertion of the law enforcement privilege can prevent the taking of a deposition. The movants failed to make citation to any authority for the proposition that the assertion of the law enforcement privilege is sufficient to prevent the taking of a deposition, and the Court finds none. The law enforcement privilege "is properly asserted, not to block an entire deposition, but to preclude specific questions if the resisting party adequately demonstrates that the harm to cognizable law-enforcement interests from requiring an answer outweighs the discovering party's need for the information." Maher v. Monahan, No. 98 Civ. 2319, 2000 WL 648166, at *4 (S.D.N.Y. May 18, 2000). "Until the claim of privilege has been presented to a district court with appropriate deliberation and precision and the duty of the demanding party to show his or her need for disclosure has been triggered, and until that duty has been discharged by the demanding party, the district court is not equipped to engage in the task of identifying and weighing the competing interests." Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1342 (D.C. Cir. 1984).
Panarella failed to submit any affidavit or declaration in support of his motion, explaining how and why he should be protected by the law enforcement privilege from being deposed. The movants' counsel's generalized and speculative contentions about potential deposition questions, in his memorandum of law, without more, do not establish that the law enforcement privilege applies to bar either Lee's or Panarella's deposition testimony. Lee's declaration, dated August 19, 2011, states that it "is made in opposition to plaintiff's motion to compel . . . the depositions of Louis Panarella, Supervising Confidential Investigator and myself." However, most of Lee's declaration, namely paragraph Nos. 12-22, of the total 22 paragraphs, consists of legal arguments, not factual matter based on Lee's personal knowledge that would explain why and how the law enforcement privilege protects Lee from being deposed. Furthermore, the movants' contentions concerning an unidentified and unexplained investigation(s) are unclear, highly speculative and uncorroborated, and they do not support the application of the law enforcement privilege to bar either Lee's or Panarella's deposition. Additionally, Lee and Panarella failed to show good cause exists for issuing an order barring their depositions to protect them from annoyance, embarrassment, oppression or undue burden or expense, as required by Rule 26(c)(1) of the Federal Rules of Civil Procedure. Therefore, quashing the subpoenas directed to Lee and Panarella is not warranted.
Conclusion
For the foregoing reasons, the movants' motion, made "pursuant to Rules 26, 37, and 45 of the Federal Rules of Civil Procedure . . . to quash subpoenas seeking the depositions of defendant Alan Aviles and non-parties Lisa Lee and Louis Panarella," Docket Entry No. 70, is denied. It is hereby ordered that:
(A) on or before June 5, 2012, the plaintiff shall serve and file any motion for reasonable expenses incurred in opposing the motion, as provided by Rule
37(a)(5)(B) of the Federal Rules of Civil Procedure;Dated: New York, New York
(B) on or before June 19, 2012, the movants shall serve and file their response;
(C) on or before June 26, 2012, the plaintiff may serve and file any reply; and
(D) the time to complete pretrial discovery is enlarged to 60 days from the date of this order, solely to permit the plaintiff to examine orally Aviles, Lee and Panarella.
May 29, 2012
SO ORDERED:
/s/_________
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE