Opinion
99 Civ. 9568 (LAK)
October 8, 2003
ORDER
This is an employment discrimination class action in which the Plaintiff's, all African-American and Latino officers of the New York City Police Department ("NYPD"), claim that they have been subjected to a hostile work environment, disparate disciplinary treatment, and unlawful retaliation. The Court has certified a class, ruled on numerous motions for summary judgment, and severed the case so as to begin with a pattern or practice trial on January 5, 2004. The general nature of the case may be gleaned from a series of prior opinions. E.g., Latino Officers Ass'n, Inc. v. City of New York, 253 F. Supp.2d 771 (S.D.N.Y. 2003) (ruling on a motion for summary judgment); id. 209 F.R.D. 79 (S.D.N.Y. 2002) (certifying class). The matter is before the Court on its sua sponte order to show cause why a time limit should not be placed on the pattern and practice phase of the trial.
I
Background — The Potential Length of the Trial
During the course of pretrial proceedings, it became apparent that the parties intend, or at least say that they intend, to call over 250 witnesses at trial. In the joint pretrial order, Plaintiff's estimated the length of the trial at two months, an estimate later said to be based on the assumption that a two month trial would afford roughly 300 hours. In fact, 300 hours would amount to more than 50 trial days and thus require a trial of at least ten weeks.
On July 14, 2003, the Court issued an order to show cause why the pattern and practice phase of the trial should not be limited to 110 hours (approximately 20 days) allotted equally between the two sides. Defendants took the position that the pattern and practice phase could readily be concluded within that period. Plaintiff's, however, resist. They contend that no time limit should be imposed. Their fallback position is that any time limit should be applied only to direct examination, in which case Plaintiff's' direct presentation should be "at least 150 hours." Levy Decl. ¶ 54. Failing that, they contend that if a time limit is imposed which results in restricting the number of examples of allegedly discriminatory conduct introduced at trial, defendants should be precluded from arguing that the instances are too few to reflect a pattern or practice and that Plaintiff's should be permitted to seek an instruction that their presentation time was limited and that either (a) the jury should take that into account or (b) the examples, if found to be true, are sufficient to establish a pattern or practice.
Plaintiff's' Trial Estimate
Plaintiff's have provided a summary description of their proposed evidence along with time estimates, which include anticipated defense cross examination of Plaintiff's' witnesses. Id. ¶¶ 9-52. This maybe summarized as follows:
Estimated Time Subject Matter Number of Witnesses (hours)
Statistical evidence 2 18-22 NYPD disciplinary process — functions and 13 46-84 procedures of NYPD units Anecdotal disciplinary witnesses 55 21-35 Comparator data ? 21-35 Inadequacies of the OEEO including 4 anecdotal 5 14-18 witnesses Hostile work environment and retaliation 32 21-35 Police Relief Fund 4 7 Cross-examination of defense witnesses 100-150 TOTAL 111+ 214-386 Bearing in mindthat testimony ordinarily is taken for approximately five and one half hours per trial day rather than the seven that Plaintiff's estimate, Plaintiff's are asking for between 21 and 43 trial days simply to present their direct case plus an additional 18 to 27 days in which to cross examine defendants' witnesses. To this, of course, must be added the time required to pick a jury, opening and closing arguments, and the presentation of defendants' direct testimony. Thus, if the trial were not constrained in some way, the anticipated length of the pattern and practice phase alone would be likely to occupy roughly 50 to 80 trial days, which would amount to 10 to 16 weeks assuming that the Court sat five days per week.Defendants' Response
Defendants argue that there is no reason why the case cannot be presented in the 110 hours initially suggested by the Court and contend that Plaintiff's' time estimates demonstrate that they propose a huge amount of repetition. They point particularly to the proposals to call 13 witnesses for 46 to 84 hours simply to explain the disciplinary process within the NYPD, 55 anecdotal witnesses on the disciplinary process alone, and a total of approximately 95 anecdotal witnesses in all.
II
It goes without saying that both sides are entitled to a fair trial and to an adequate opportunity to present evidence in their respective efforts to persuade the trier of fact to find in their favor. This is true in every case, and it certainly is true here, where Plaintiff's raise serious issues about whether the law enforcement agency immediately relied upon by citizens of our City conducts itself in an appropriate manner toward all of its officers. By the same token, neither this nor any other court has infinite resources. This is one of many hundreds of cases on the docket of the undersigned, and care must be taken to ensure that zealous advocacy, however commendable, does not deprive other litigants of the attention that their cases too deserve.
Considerations such as these have resulted in a long line of cases making clear the authority of district judges to impose reasonable time limitations on trials. E.g., Life Plus Int'l v. Brown, 317 F.3d 799, 807 (8th Cir. 2003) ("Trial courts are permitted to impose reasonable time limits on the presentation of evidence to prevent undue delay, waste of time, or needless presentation of cumulative evidence."); Sparshott v. Feld Entm't, Inc., 311 F.3d 425, 433 (D.C. Cir. 2002) (("The district court's decisions on how to structure time limits are reviewable only for abuse of discretion.") (citations omitted)); Amarel v. Connell, 102 F.3d 1494, 1513-15 (9th Cir. 1996) ("The case law makes clear that where a district court has set reasonable time limits and has shown flexibility in applying them, that court does not abuse its discretion. Moreover, to overturn a jury verdict based on a party's failure to use its limited time for witness cross-examination would be to invite parties to exhaust their time limits without completing cross-examination, then appeal on due process grounds."); Deus v. Allstate Ins. Co., 15 F.3d 506, 520 (5th Cir.), cert. denied, 513U.S. 1014 (1994) ("to the management of its docket, the court has an inherent right to place reasonable limitations on the time allotted to any given trial."); Barges v. Our Lady of the Sea Corp., 935 F.2d 436, 442-43 (1st Cir. 1991) ("District courts may impose reasonable time limits on the presentation of evidence."); Flaminio v. Honda Motor Co., 733 F.2d 463, 473 (7th Cir. 1984) ("[I]n this era of crowded district court dockets federal district judges not only may but must exercise strict control over the length of trials, and are therefore entirely within their rights in setting reasonable deadlines in advance and holding the parties to them. . . ."). The question therefore is what is reasonable for this case.
The two principal foci of defendants' attack on Plaintiff's' proposed evidence are the proposals to call 13 witnesses over 8 to 15 trial days to establish the nature of the disciplinary process in the NYPD and to call up to 95 anecdotal witnesses over an approximately like period of time.
The defendants' point with respect to the first of these categories is well taken. The Court sees no reason why it should take 8 to 15 trial days to explain how the Police Commissioner's Office, the First Deputy Commissioner's Office, the Department Advocate's Office, the Civilian Complaint Review Board, the Office of Legal Matters, the Personnel Department, the Disciplinary Assessment Unit, the Deputy Commissioner of Trials, and the Internal Affairs Bureau work in disciplinary situations. This can and should be stipulated. Cf. Latino Officers Ass'n, 209 F.R.D. at 81-82. To be sure, Plaintiff's say, in quite conclusory terms, that they wish to call two witnesses to testify to alleged negative attitudes of former Commissioner Safir and Commissioner Kelly toward OEEO complainants. Moreover, the Court assumes that there may be a need for a small number of other brief witnesses on matters relating to the process to which the defendants perhaps will not stipulate. Even taking this into account, however, it is hard to see how an efficient, economical presentation of the necessary material in this area should take anything remotely approaching the time that Plaintiff's propose to consume.
The anecdotal witness issue is a bit more difficult, particularly as the Court cannot escape the feeling that the parties' extreme positions are essentially negotiating postures rather than realistic estimates of what is necessary to try this case in an appropriate way. But the appropriate starting point is the nature of the pattern or practice phase of the case.
There are two phases to any pattern or practice case: the so-called liability and remedial phases. This is "something of a misnomer" because, although the defendant's liability to the class as a whole is determined in the liability phase, the remedial phase implicates questions of liability as well, albeit liability to individual Plaintiff's. At the liability stage of the case, Plaintiff's bear the ultimate burden of proving by a preponderance of the evidence that the defendants engaged in a pattern or practice of discrimination against the class. If they succeed, "the [C]ourt may proceed to fashion class-wide injunctive relief." Where Plaintiff's have sought individual relief, such as back pay and compensatory and punitive damages, in addition to such class-wide injunctive relief, a remedial phase must follow the liability phase to determine whether any particular plaintiff is entitled to this individualized relief. At the remedial stage, class members enjoy "a presumption in their favor `that any particular employment decision, during the period in which the discriminatory policy was in force, was made pursuant to that policy.'" This presumption
Robinson, 267 F.3d 147, 158 n. 4 (2d Cir. 2001).
Id. at 159.
Id. (quoting Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324, 362 (1977)).
"substantially lessen[s] each class member's evidentiary burden relative to that which would be required if the employee were proceeding separately with an individual disparate treatment claim. . . . Rather than having to make out a prima facie case of discrimination and prove that the employer's asserted business justification is merely a pretext for discrimination, a class member at the remedial stage . . . need only show that he or she suffered an adverse employment decision and therefore was a potential victim of the proved [class-wide] discrimination."
Id. (internal quotation marks omitted, alterations in original).
As to any Plaintiff's who are able to show an adverse employment action, the burden shifts to the employer to show that the action was undertaken for a lawful reason. If the employer does not meet this burden, the employee is entitled to individualized equitable relief. Class members who seek compensatory damages will be required further to prove that the discrimination caused them "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, [or] other nonpecuniary losses."
Such individualized equitable relief may include back pay and front pay.
Id. at 160 (quoting 42 U.S.C. § 1981a(b)(3)).
As the Court of Appeals has explained, "the liability phase is largely preoccupied with class-wide statistical evidence directed at establishing an overall pattern or practice of intentional discrimination." Robinson, 267 F.3d at 168. Contrary to Plaintiff's' contention, the Circuit has not said that `"a meaningful number of concrete examples of discrimination' is crucial in a case" like this one. Levy Decl. ¶ 4 n. 1. Coser v. Moore, 739 F.2d 746 (2d Cir. 1984), the case upon which Plaintiff's rely, said only that the Circuit was not prepared to reject as clearly erroneous the district judge's findings that the employer operated its affirmative action program in good faith and that the program generally was effective, in part because the Plaintiff's failed "to provide a meaningful number of individual instances of discrimination." Id. at 751-52. Far more significant for present purposes is Robinson, where the Court set out the role of anecdotal evidence in pattern or practice trials:
"To the extent that evidence regarding specific instances of alleged discrimination is relevant during the liability stage, it simply provides `texture' to the statistics. Such anecdotal evidence is not introduced to establish that the particular instances of discrimination actually occurred nor that the particular employees were in fact victims of discrimination, [citation omitted] Indeed, to ensure that the liability phase remains manageable, the district court may limit the anecdotal evidence as it deems appropriate. See Fed.R.Evid. 403." 267 F.3d at 168.
With this in mind, it is quite clear that the Plaintiff's' proposal to call up to 95 anecdotal witnesses and to consume weeks in doing so is unreasonable.
What then is to be done? A more reasonable and, in the Court's view, a generous assessment of what Plaintiff's' really require to present this case, set out in the terms Plaintiff's have used (i.e., including time for defendants' cross-examination of Plaintiff's' witnesses), is as follows:
Statistical evidence 18 hours NYPD disciplinary process 11 Anecdotal witnesses — discipline 11 Comparator evidence 21 OEEO evidence 5.5 Police Relief Fund 5.5 Anecdotal evidence — hostile work environment 22 ___ _________________________________________________ 90 hours Fairness dictates that defendants be given equal time.This of course in no way suggests any determination with respect to the appropriateness of calling or of the examination of any particular witness. The Court will exercise its responsibilities under Rule 403 as occasion demands.
III
In view of the foregoing, the Court hereby determines that the pattern and practice phase of the trial will be limited to no more than 190 hours, divided equally between the two sides. The time spent in opening and closing arguments and in the examination (direct and cross) of each witness will be charged against the side that calls the witness. The Court reserves the right to charge time spent in argument while the jury is present and ready to hear evidence as it sees fit. It reserves also the right to limit excessive cross-examination and/or to charge excessive time spent in cross-examination against the cross-examining rather than the calling party.
The parties shall file a revised joint pretrial order no later than November 22, 2003. The joint pretrial order shall contain stipulations of fact with respect to the disciplinary process in the NYPD and all other matters as to which it is possible to reach agreement. It shall identify all anecdotal witnesses Plaintiff's propose to call and contain a brief summary of the proposed testimony and an estimate of the time required for the direct examination of each.
The time limit established by this order is provisional. The Court may adjust the time limit downward in light of subsequent developments. It stands ready as well to consider an appropriately supported request for an upward adjustment. Any such request, however, will bear a significant burden of persuasion.
Plaintiff's' requests for instructions at trial are denied without prejudice.
SO ORDERED.