Summary
reserving contention interrogatories until conclusion of discovery despite lack of "categorical prohibition"
Summary of this case from In re Facebook, Inc.Opinion
00 Civ. 5079 (RWS)
March 22, 2001
MEMO OPINION
By Notice of Motion filed February 14, 2001, Plaintiff Curtis Shannon ("Shannon") sought an order compelling the Defendants, New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority (collectively, the "Transit Authority") to respond to certain discovery requests, pursuant to Federal Rule of Civil Procedure 37. Submissions were received, and the matter was marked fully submitted on February 28, 2001.
Before turning to the merits, it is necessary to address Shannon's contention that the Transit Authority waived its right to object to the discovery requests at issue herein. This contention is based on the fact that Shannon's counsel, after orally agreeing to an extension of time for the Transit Authority to serve responses to the discovery requests, followed up with a letter to counsel for the Transit Authority stating that Shannon had not "waived any of the rights he possessed because of the late submission." Letter from Irene Donna Thomas to Kimberly Westcott of December 27, 2000. The Transit Authority subsequently served both answers and objections within the agreed-upon period for it to file its responses. Answers and objections to discovery requests are as a rule to be served to together. Under these circumstances, there was no waiver by the Transit Authority of its right to raise objections to Shannon's discovery requests.
The first discovery request as to which Shannon seeks relief is Interrogatory no. 7, which directs the Transit Authority to:
Identify all lawsuits, administrative actions, and alternative dispute resolution proceedings where violations of the Americans with Disabilities Act were alleged against the defendants. Please state the following:
a. The name of the court, agency, or neutral third party;
b. An identifying number and/or heading for the action;
c. The date the action commenced; and
d. The disposition.
In this action, Shannon alleges unlawful disability-based discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (the "ADA"), and the New York State Executive Law.
In its response, the Transit Authority objected that this interrogatory was over broad, unnecessarily burdensome, and irrelevant to plaintiff's claims.
The Transit Authority also objected that this interrogatory exceeds the scope of Local Rule 33.3, read in conjunction with Federal Rule of Civil Procedure 33. However, the Transit Authority has failed to explain the nature of this objection in connection with the instant motion.
Under the Federal Rules, discovery may be had:
regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.
A [D]efendant cannot evade its discovery responsibility by simply intoning [the] familiar litany that the interrogatories are burdensome, oppressive or overly broad." Compagnie Francaise D'Assurance v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y. 1984); see Leumi Fin. Corp. v. Hartford Accident and Indemnity Co., 295 F. Supp. 539, (S.D.N.Y. 1969) (same). The burden is on the party resisting discovery to explain its objections and to provide support therefore. See Compagnie Francaise, 105 F.R.D. at 42-43.
The Transit Authority has now amplified its objection by contending that, first, Interrogatory no. 7 is irrelevant to the potential issues in this case — which the Transit Authority identifies as "whether plaintiff has a disability and whether his removal from the operation of buses was illegal and discriminatory" — and second, that the request is overly burdensome given that the Transit Authority employs approximately 47,000 persons and transports millions of passengers each week on its buses and subways.
Interrogatory no. 7 seeks information regarding other proceedings in which claims of ADA discrimination were raised against the Transit Authority. An employer's discriminatory conduct towards other employees is relevant to the issues of intent, motivation, and knowledge in an employment discrimination suit. See Fed.R.Evid. 404(b); Epstein v. Kalvin Miller Int'l, 121 F. Supp.2d 742, 747-49 (S.D.N.Y. 2000) (evidence of ages and disability status of employees terminated by employer shortly before plaintiff terminated relevant as circumstantial evidence of employer's intent, motivation, and knowledge); cf. Waterson v. Plank Road Motel Corp., 43 F. Supp.2d 284, (S.D.N.Y. 1999) (evidence of discriminatory conduct towards other employees relevant to establishing intent to create hostile environment). Thus, the Transit Authority's objection on relevance grounds is misplaced, at least in part.
As for the burden issue, the Transit Authority has failed to provide sufficient specifics as to why the request, at least insofar as it is directed at proceedings involving employees, is overly burdensome. Rather, the only basis provided is an unsworn representation by counsel regarding the numbers of Transit Authority employees and passengers. Even taking these representations at face value, it is notable that no information has been provided regarding such matters as the available record-keeping systems or the estimated number of cases involved. Cf., e.g., Katt v. New York City Police Dept., No. 95 Civ. 8283, 1997 WL 394593, at *2-*3 (S.D.N.Y. July 14, 1997) (ordering random sample of sexual harassment complaints brought against NYPD officers rather than production of 131 files relating to such complaints identified by defendants to amehorate discovery burden).
Nonetheless, as worded, Interrogatory no. 7 is both overly broad and exceeds the bounds of relevance in some respects. Therefore, the Transit Authority is directed: (1) to identify, for the five-year period preceding Shannon's resignation/termination, all lawsuits, administrative actions, and alternative dispute resolution proceedings commenced by employees of the defendants alleging violations of the Americans with Disabilities Act; and (2) to state with respect to the aforementioned proceedings (a) the name of the court, agency, or neutral third-party; (b) an identifying number and/or heading for the action; (c) the date the action commenced; and (d) the disposition.
The parties disagree as to how Shannon's employment ended.
The second discovery request as to which Shannon seeks relief is Document Request. no. 3, which directs the Transit Authority to:
Produce copies of complaints, petitions, grievances, etc. by persons other than the plaintiff in any action or proceeding filed against defendants in which the allegations are similar to those of this suit.
The objections made by the Transit Authority and the arguments raised by Shannon are equivalent to those just addressed in the context of Interrogatory no. 7. Here again, the discovery request is relevant and has not been shown to be unduly burdensome, at least in part, but is appropriately narrowed to some degree. Therefore, the Transit Authority is directed to produce, for the five-year period preceding Shannon's resignation/termination copies of complaints, petitions, or grievances by Transit Authority employees other than the plaintiff in any action or proceeding filed against the defendants alleging disability-based discrimination.
If, after the Defendants have responded as directed to the aforementioned discovery requests, Shannon believes that discovery beyond the five-year period described above is needed, then he may renew his motion in that regard.
Finally, Shannon seeks intervention regarding several "contention interrogatories." This interrogatories direct the Transit Authority as follows: "to identify defendants' opinions and contentions about its defenses that relate to facts or to the application of law to facts in this case"; "if defendants content that plaintiff does not have a disability as defined by the Americans with Disabilities Act . . . state the factual basis for this contention"; "if defendants contend that plaintiff is unable to perform the essential functions of the job previously held by plaintiff, state the factual basis for the contention"; and, "if the defendants contend that the treatment received by plaintiff was justified or legally excused in any way, state the factual basis for the contention."
The Transit Authority objects that these interrogatories are premature, under Local Civil Rule 33.3, and constitute an improper attempt to shift the burden of proof to the defendants. Shannon maintains that these interrogatories are warranted because the Transit Authority's answer to the complaint fails to state its alleged, legitimate, non-discriminatory reasons for its adverse employment action, and therefore Shannon will be forced without justification to expend valuable resources pursuing discovery as to this issue.
Local Rule 33.3 provides in relevant part:
At the conclusion of other discovery, and at least 30 days prior to the discovery cut-off date, interrogatories seeking the claims and contentions of the opposing party may be served unless the court has ordered otherwise.
Local Civ. R. 33.3(c).
The Transit Authority represents without contradiction that the only discovery which has occurred to date is document discovery. As of the filing of the instant motion, no depositions had been conducted. The Transit Authority's answer is, to be sure, very general, as it states in relevant part that "the complaint fails to state a claim," Answer ¶ 22, and "Defendants' actions were taken in good faith at all times for legitimate reasons, were in accordance with federal and state law and were lawful and proper," Answer ¶ 27. However, the matters about which the contention interrogatories inquire are properly the subject of depositions, at least in the first instance. Thus, while there is no categorical prohibition on serving contention interrogatories at a time other than thirty days before the discovery cut-off date, see Maryland Casualty Co. v. W.R. Grace Co. — Conn., No. 88 Civ. 4337, 1995 WL 404829, at *1 (S.D.N.Y. July 6, 1995), as the court may order otherwise, under the circumstances these interrogatories are premature. Shannon's motion to compel responses to these interrogatories is denied with leave to renew after further discovery has occurred, including depositions.
No opinion is expressed at this time regarding any contentions raised as to the propriety of the contention interrogatories.
Therefore, for the reasons set forth above, the motion to compel. is granted in part and denied in part. The Transit Authority is directed to provide the discovery ordered herein within thirty days of entry of this opinion.
Discovery in this action is presently scheduled to close on April 1, 2001. A revised scheduling order will be issued extending the discovery period.
It is so ordered.