Opinion
No. 03-CV-6356T.
June 10, 2004
DECISION ORDER
Plaintiff has applied to this Court for the appointment of counsel pursuant to 42 U.S.C. § 2000e-5(f)(1), which provides that counsel may be appointed "in such circumstances as the court may deem just." (Docket # 12).
It is clear that assignment of counsel is within the court's discretion. Jenkins v. Chemical Bank, 721 F.2d 876 (2d Cir. 1983). The factors to be considered in deciding whether or not to assign counsel were set forth by the Second Circuit in Jenkins and include consideration of the following matters; the plaintiff's ability to afford a private attorney; the efforts taken by the plaintiff to obtain a lawyer; the availability of counsel in the geographical area and the plaintiff's possible skill or lack of skill at obtaining such help as well as the number of contacts with potential counsel; examination of the merits of the plaintiff's case (according appropriate weight to the conclusion of the Equal Employment Opportunity Commission (the "EEOC")); plaintiff's ability to gather and present crucial facts; and the complexity of the legal issues raised in the complaint. Id. at 880.
The court must consider the issue of appointment carefully because "every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the court must first look to the "likelihood of merit" of the underlying dispute, Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); Cooper, 877 F.2d at 174, and "even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the . . . claim are thin and [the] chances of prevailing are therefore poor." Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (denying counsel on appeal where petitioner's appeal was not frivolous but nevertheless appeared to have little merit).
In the instant matter, a status conference was conducted before this Court on April 20, 2004. During that conference, plaintiff expressed her reluctance to provide copies of her medical records, which were requested by defense counsel. According to plaintiff, such records are not relevant to her employment discrimination claim. This Court explained to plaintiff at that time that her medical records are indeed relevant to her claims for emotional distress damages, and thus are discoverable, at least in part.
Plaintiff subsequently sent a letter to the Court, dated April 28, 2004, requesting legal counsel. (Docket # 12). Specifically, plaintiff indicated that counsel was necessary to assist her with, "questions regarding defendant's requests for documents," "[q]uestions regarding . . . past issues which may or may not have a bearing on this case at this time," and "[q]uestions/concerns regarding all aspects of this case from a legal standpoint" ( Id.). This Court reads plaintiff's letter as a motion requesting counsel, who she apparently believes may assist her in determining whether justification exists to resist discovery of her medical records. However, because plaintiff's medical records are discoverable in that they are relevant to her claim for emotional damages, see e.g., Manessis v. New York Dept. of Transp., 2002 WL 31115032, *2 (S.D.N.Y. 2002) (compelling production of medical records relating to employee's claim for emotional distress); Cleveland v. International Paper Co., 1997 WL 309408, *2 (N.D.N.Y. 1997) (finding plaintiff's medical records relevant and discoverable in employment discrimination case where plaintiff raised claim for emotional distress), counsel, even if appointed, will not be able to provide plaintiff with the assistance she seeks. Stated simply, plaintiff must, either with or without the assistance of counsel, respond to defendant's discovery requests.
In light of the above, plaintiff has failed to adequately demonstrate a need for appointed counsel at this time. Moreover, to the extent plaintiff has requested counsel to assist her in "all aspects of this case," such an appointment is not necessary. Plaintiff has shown an ability to gather and present relevant information to the Court, describes only minimal efforts to obtain an attorney on her own, and has not demonstrated a lack of skills to obtain such an attorney. In addition, the Court notes that there is a very limited number of local attorneys willing and able to handle employment discrimination cases on a pro bono basis. See Jenkins, 721 F.2d at 880. Based on this review, plaintiff's motion for the appointment of counsel is denied without prejudice at this time. It is the plaintiff's responsibility, therefore, to retain an attorney or press forward with this action pro se. 28 U.S.C. § 1654.