Opinion
06 Civ. 2362 (PKC) (HBP).
February 20, 2007
OPINION AND ORDER
I write to resolve a discovery dispute resulting from defendants' failure to respond to interrogatories and document requests served by plaintiff and defendants' failure to respond to a subsequent motion by plaintiff to compel answers to his interrogatories and document requests.
This is an action brought pursuant to 42 U.S.C. § 1983 in which plaintiff alleges that while he was a pretrial detainee in defendants' custody, he was improperly designated to a "Security Risk Group" based on an incorrect suspicion that he was a member of a gang. As a result of this allegedly incorrect designation, plaintiff claims that he was subjected to "many searches, harassment threats [was] confronted by real gang members" (Compl. § II(D)).
On or about June 20, 2006, plaintiff served a set of interrogatories and document requests. The interrogatories sought identifying information with respect to certain individuals who approved his placement in the Security Risk Group, information concerning certain videotape evidence, addresses where process can be served and last known addresses for individuals identified in other interrogatories but who are no longer employed by the City of New York. The document requests sought plaintiff's Security Risk Group Classification file, documents concerning searches of plaintiff while he was in defendants' custody, any documents concerning grievances filed by plaintiff regarding his placement in the Security Risk Group, documents setting forth the procedures used to designate inmates for inclusion in the Security Risk Group, documents concerning any instance in which any individual defendant was charged with making a false report and certain other documents.
Defendants, who are represented by the Corporation Counsel of the City of New York, did not serve any response to either the interrogatories or the document requests. On January 5, 2007, plaintiff served a motion to compel answers to both sets of discovery requests. Defendants also ignored this motion. Accordingly, on January 25, 2007, I granted plaintiff's motion with the endorsement: "Motion granted. No opposition. Defendants are directed to produce all documents requested answer all interrogatories by February 8, 2007." This Order was mailed to plaintiff and counsel for defendants on January 25, 2007. Defendants have also failed to comply with this Order.
As discussed below, defendants have requested additional time to comply with my January 25, 2007 Order. However, it is self-evident that a request for relief, without more, cannot operate to grant the relief sought. Willemijn Houdstermaatschaapij BV v. Apollo Computer Inc., 707 F. Supp. 1429, 1441 (D. Del. 1989).
On February 5, 2007 I received a letter from the Assistant Corporation Counsel assigned to this matter, addressing the defendants' defaults. Although this letter is dated February 2, 2007, it was actually faxed and received by my chambers on February 5, 2007 at 12:49 p.m. In her letter, the Assistant Corporation Counsel does not attempt at all to explain defendant's failure to respond to plaintiff's June 2006 discovery requests in a timely manner. She does, however, address her failure to respond to the motion. First, she states that she was unable to answer the motion because she was on trial before Honorable Harold Baer, United States District Judge, during the week of January 22, 2007. Second, she states that she never received ECF (electronic case filing) notification of plaintiff's motion. She also inconsistently describes the relief she is seeking. In the first paragraph of her letter, she states she is "request[ing] and extension to March 30, 2007 to produce all requested documents and answer plaintiff's interrogatories." In the third paragraph of her letter she states she is requesting "an extension to March 30, 2007 to produce some of the requested documents and answer plaintiff's interrogatories" (emphasis added). Counsel then goes on to discuss objections to the document requests, claiming that producing some of the documents would "severely compromise the security and procedures involved in security risk group classifications."
Neither excuse offered for defendants' defaults is persuasive. First, few attorneys have the luxury of addressing only one case at a time; many attorneys are able to address the needs of multiple cases simultaneously. Second, as to the purported scheduling conflict with counsel's trial before Judge Baer, plaintiff's motion was served on January 5, 2007. Defendants' response was due four business days thereafter, or on January 11, 2007. Local Civil Rule 6.1(a). Because plaintiff served his motion by mail, defendants were entitled to an additional three days (which I will assume should be limited to business days), bringing the date for defendants' response to January 16, 2007. Fed.R.Civ.P. 6(e). Thus, defendants' response was due almost one week before the trial before Judge Baer commenced. The trial cannot, therefore, have been the basis for defendants' default. Moreover, by no stretch can a one week trial in January, 2007 excuse defendants' failure to respond to discovery requests served in June, 2006. Finally, if the workload of the Assistant Corporation Counsels assigned to this matter was too heavy to allow them to respond to plaintiff's discovery requests and motion in a timely manner, counsel could have requested that the matter be re-assigned to one of the other 648 attorneys employed by the Corporation Counsel (http://www.nyc.gov/law/html/home/home.shtml (follow "About the Law Department") (according to its website, the Corporation Counsel of the City of New York is assisted by 650 lawyers and 850 "support professionals")); the issues presented by the discovery requests and the motion not complex.
To the extent counsel is relying on a failure to receive ECF notice, her excuse is inconsistent with the ECF procedures in this District. Because pro se litigants (especially prisoners, such as plaintiff) rarely have access to the hardware and software necessary to utilize ECF procedures, pro se cases are not assigned to the ECF system (http://www1.nysd.uscourts.gov/ecf_filing.php (follow "Guidelines for Electronic Case Filing;" then follow "Which cases will be ECF cases?")).
Defendants' application for yet more time to respond to plaintiff's discovery requests and to assert objections to the requests at this late date is troubling. In effect, defendants are seeking to have me ignore their six-month long default in responding to plaintiff's discovery requests and their default in responding to the motion to compel so that I now start analyzing the discovery requests as if objections had been timely asserted. Given the Supreme Court's repeated admonitions concerning the importance of complying with procedural requirements, Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980) ("[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law."); accord McNeil v. United States, 508 U.S. 106, 113 (1993); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam) ("Procedural requirements . . . are not to be disregarded by courts out of a vague sympathy for particular litigants."), it is impossible to justify this result.
On the other hand, it cannot be seriously questioned that prison guards perform a difficult job and that some face serious threats to their safety. Given these risks, it would be irresponsible to order that material that gives rise to a genuine security issue be produced to an inmate simply as a result of Corporation Counsel's default.
Because there is no evidence in the record concerning the issue, it is not presently known whether the plaintiff in this action presents any threat to corrections officers, although I note that the Department of Correctional Services website reports that plaintiff has been convicted of the offences of murder in the second degree, reckless endangerment in the first degree, criminal possession of a weapon in the third degree. Nevertheless, the mere dissemination of information can present a risk because it is impossible to control the information. For example, even if plaintiff would not misuse information concerning security procedures, if such information were released to plaintiff, it would be impossible to prevent other inmates from having access to the information and impossible to know how they would use the information.
I conclude that the competing interests are appropriately balanced by directing that defendants answer all interrogatories and produce all documents requested except those that present a genuine risk to the safety of Department of Corrections personnel. All other objections are waived as a result of defendants' failure to respond to the discovery requests in a timely manner. As to documents or other information that defendants believe give rise to genuine security concerns, defendants are to make a specific, individualized showing by affidavit why production would give rise to such concerns. Broad-brush, boiler-plate justifications will not be accepted. To the extent that plaintiff is seeking information to complete service, defendants need not provide the information or address potential security issues if counsel represents that they are authorized to accept service by mail.
Given the fact that plaintiff has been seeking this information since June 2006, defendant's request to further delay production to March 30, 2007 is unreasonable. Defendants are directed to comply with the foregoing paragraph no later than March 5, 2006.
Finally, to the extent defendants' counsel seeks permission to serve interrogatory answers that are not signed by the defendants, the application is denied. I am aware of no authority that permits a court to waive this requirement of Fed.R.Civ.P. 33(b)(1) and (2), and defendants have cited none.
SO ORDERED