Opinion
Civil Action 18 Civ. 4476 (LJL) (SLC)
06-02-2021
LOCAL 3621, EMS OFFICERS UNION, DC-37, AFSCME, AFL-CIO, et al., Plaintiffs, v. THE CITY OF NEW YORK, et al., Defendants.
THE HONORABLE LEWIS J. LIMAN, United States District Judge:
REPORT & RECOMMENDATION
Sarah L. Cave, United States Magistrate Judge
I. INTRODUCTION
Plaintiffs, a union (Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO (“Local 3621”)) and two employees of the New York City Fire Department (“FDNY”), bring this putative class action against the City of New York (the “City”), the FDNY, the Department of Citywide Administrative Services (“DCAS”), and several John and Jane Does (collectively, “Defendants”), alleging that employees in the FDNY's Emergency Medical Services Bureau (“EMS”) who seek promotions above the rank of lieutenant are subject to disparate treatment and disparate impact based on impermissible considerations. Plaintiffs assert claims under 42 U.S.C. §§ 1981 and 1983, and the New York State and New York City Human Rights Laws. (ECF Nos. 1 ¶¶ 1, 4; 26 at 2-3).
Before the Court is Plaintiffs' Motion pursuant to Federal Rule of Civil Procedure 37 (the “Motion”), which seeks to preclude Defendants from offering certain evidence in opposition to Plaintiffs' pending Motion for Class Certification (the “Class Motion”). (ECF Nos. 375-79). Specifically, Plaintiffs ask the Court to preclude Defendants from (i) using BLDS, LLC (“BLDS”) as an expert, exclude the review by BLDS's Christopher Erath, Ph.D. (“Erath”) dated February 18, 2021 (the “Erath Report”), and to strike references to the Erath Report from Defendants' opposition to the Class Motion (the “Class Opposition”); (ii) using an “Applicant List” (discussed further below) and strike any references to the Applicant List from the BLDS Report or the Class Opposition; (iii) using documents Defendants failed to timely produce; and (iv) relying in the Class Opposition on “defamatory and spurious statements” regarding Plaintiff Renae Mascol (“Mascol”). (ECF No. 376 at 3). Defendants have filed a memorandum of law and supporting declarations (the “Opposition”), arguing that Plaintiffs have failed to meet the standard for any of the relief they seek. (ECF Nos. 391-93). Plaintiffs have filed a reply memorandum of law (the “Reply”) and declaration (the “Reply Declaration”) that attached additional evidence not included with the Motion. (ECF Nos. 398-99).
Page No. refer to the ECF page number, unless otherwise noted.
For the reasons set forth below, the Court respectfully recommends that the Motion be DENIED.
II. BACKGROUND
The factual background of this case is set out in detail in the Court's March 11, 2020 Memorandum Opinion & Order resolving various discovery disputes (the “March 11 Opinion”), and is incorporated by reference. Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO v. City of New York, No. 18 Civ. 4476 (LJL) (SLC), 2020 WL 1166047, at *1 (S.D.N.Y. Mar. 11, 2020). As explained in the Court's March 31, 2021 Report and Recommendation concerning Plaintiffs' Motion for an Adverse Inference, the parties have had endless disputes concerning class certification discovery that the Court has attempted-with questionable success-to resolve through innumerable conferences and orders. Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO v. City of New York, No. 18 Civ. 4476 (LJL)(SLC), 2021 WL 1750866, at *1 (S.D.N.Y. Mar. 31, 2021). Class certification discovery closed on November 25, 2020, and the parties began briefing the Class Motion (ECF Nos. 300, 355), until briefing was stayed pending the filing and resolution of this Motion. (ECF No. 365).
The factual and procedural backgrounds specific to each of the four types of relief Plaintiffs seek in the Motion are set out separately below.
III. DISCUSSION
A. BLDS
1. Background
Erath joined BLDS in 2011, and since that time has “been consistently retained by the City of New York to serve as an expert consultant in a variety of matters.” (ECF No. 392 ¶ 3 (Erath Declaration)). Before joining BLDS, Erath was employed by NERA Economic Consulting, where he had similarly been retained by the City to serve as an expert consultant. (Id. ¶ 4). While at BLDS, Erath and his colleagues have served as expert consultants in over 70 cases for the City, including “a No. of high-profile cases, ” including cases for the Department of Education and the FDNY for which Erath performed damages and disparate impact statistical analyses. (Id. ¶¶ 5-6).
Plaintiffs assert in the Motion that on July 13, 2017, they retained BLDS “to provide consulting services in this matter as Plaintiffs' expert.” (ECF No. 376 at 3). The Reply Declaration does attach an engagement letter between Plaintiffs' counsel and BLDS dated July 13, 2017 contemplating that BLDS's David W. Griffin, Ph.D. (“Griffin”) would “provide independent and objective consulting services” at a rate of $680 per hour (the “Engagement Letter”), and a single invoice for three days of services totaling 8.25 hours that Griffin performed in early August 2017 (the “Invoice”). (ECF Nos. 399; 399-1). Plaintiffs assert that they provided information to BLDS, which “for over two (2) years . . . performed statistical analysis and strategic planning on behalf of Plaintiffs and in support of their claims in this action.” (ECF No. 376 at 3). The record on the Motion does not show that Griffin or anyone else at BLDS performed any services for Plaintiffs after August 10, 2017.
Plaintiffs' assertions regarding their retention of BLDS appear not in their Counsel's Declaration (ECF No. 377), but only in Plaintiffs' memorandum of law (ECF No. 376), and therefore “have no evidentiary weight.” Leibovitz v. City of New York, No. 15 Civ. 546 (LGS) (HBP), 2017 WL 462515, at *1 n.1 (S.D.N.Y.
The Reply Declaration does not explain why the Engagement Letter and the Invoice did not accompany the Motion in the first instance.
Attached as an exhibit to the Complaint (but not submitted with the Motion) is a letter dated August 10, 2017 from Griffin consisting of two paragraphs and two charts that analyzed “a current ‘snapshot' of all active members of [EMS].” (ECF No. 1-3 (the “Griffin Letter”) at 2). The Griffin Letter asserts that the snapshot data on which he relied, which encompassed 4, 140 EMS members, “indicates that approximately 52% of those at the rank of Captain and above are white males, compared to 36% of those in the lower ranks, ” which Griffin stated was “statistically significant at a conventional level and remains true after accounting for differences in age, FDNY service years and education level.” (Id.) Plaintiffs assert that they submitted the Griffin Letter to Feb. 3, 2017) (citing Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009)); see Markowitz Jewelry Co. v. Chapal/Zenray, Inc., 988 F.Supp. 404, 407 (S.D.N.Y. 1997) (“[T]estimonial evidence submitted on motions must be in the form of affidavits or declaration. Unsworn statements by counsel simply will not do.”) (internal citations omitted). the Equal Employment Opportunity Commission (“EEOC”) on an unspecified date. (ECF No. 376 at 3).
In late 2018 or early 2019, Erath received a call from Defendants' counsel inquiring why BLDS had performed work for Plaintiffs' counsel, The Kurland Group (“TKG”), given that TKG “regularly litigates” against the City and that Erath and BLDS had acted as expert consultants for the City since at least 2011. (ECF No. 392 ¶ 8). Erath then instructed Griffin to “cease all work with [TKG] involving the City, ” but “did not discuss or review any of the work” Griffin performed for TKG. (Id. ¶ 9).
To the Court's knowledge, Plaintiffs have not submitted in this action any further analyses by Griffin or any other professionals at BLDS. In support of the Class Motion, Plaintiffs submitted the expert report of Shane Thompson, Ph.D. (“Thompson”), of Precision Analytics Co, LLC (the “Thompson Report”)). (ECF No. 307-8).
At a January 15, 2019 conference before the Honorable Paul G. Gardephe (to whom the case was then assigned), the parties represented that they had met and conferred regarding BLDS and agreed that they would submit for the Court's review a stipulation “that there would be a wall put up between the two matters and BLDS would continue to work with the plaintiff in this matter.” (ECF No. 75 at 14; see ECF No. 36-4 at 10). Subsequently, however, Defendants' counsel informed TKG that “BLDS now no longer wanted to proceed as an expert in this action, ” and therefore, the contemplated stipulation did not materialize. (ECF No. 75 at 14). Informed of these developments during a December 19, 2019 conference, at which Defendant's counsel explained that BLDS was “a long time client” of the City and specifically mentioned Erath by name (id. at 10-11), Judge Gardephe explained:
Although the official transcript of the January 15, 2019 conference with Judge Gardephe was never formally filed on the docket, Plaintiffs attached a copy of the transcript to a February 22, 2019 letter to the Court. (ECF No. 36-4).
[I]t's up to BLDS what it wants to do but a rational vendor might well conclude we have a continuing relationship with the City which is an important one to us and we don't want to jeopardize that relationship by taking a one-off matter. And, if BLDS made that determination, which is just a business decision, I don't see the issue that presents. That is just a business decision that BLDS makes. According to Ms. Canfield, they have made that decision.(Id. at 15). Judge Gardephe then clarified that Defendants did not “have a problem with plaintiff[s'] counsel relying on work that BLDS already has done in this case, ” and therefore Plaintiffs could “rely on and use the data and the work that BLDS has already done for you for purposes of this case.” (Id. at 19).
Plaintiffs contend that they were not aware that Defendants intended to use BLDS in this action until March 11, 2021, when Defendants filed the Class Opposition, which included the Erath Report. (ECF No. 376 at 4; see ECF No. 354-19). In the Erath Report, Erath states that he used “three sources of data”: (1) “Two spreadsheets, one for active and one for ‘ceased' employees, showing year-end snapshots of EMS employees and the position held for each of 2013-2019” (the “Year-End Spreadsheets”); (2) “Two spreadsheets, one for active and one for ‘ceased' employees, showing job changes and their dates for 1999-2019” (the “Job Change Spreadsheets”); and (3) “Documents showing actual applicants to Captain openings for 2014-2019 and the selections made” (the “Applicant Documents”). (ECF No. 354-19 at 2; see ECF No. 392 ¶¶ 12-14). Category (1) encompassed 6, 944 EMS employees, but neither the Thompson Report nor the Erath Report indicate the No. of EMS employees in Category (2). (ECF Nos. 307-8 at 2; 354-19 at 4). Erath states that Thompson used categories (1) and (2) in the Thompson Report, but not category (3). (ECF No. 354-19 at 2).
Erath states that the Year-End Spreadsheets were labeled “EMS HRIS Yrly Snapshot 12162020.xlsx” and “EMS HRIS Yrly Ceased Snapshot 12162020.xlsx.” (ECF No. 392 ¶ 12).
Erath states that the Job Change Spreadsheets were labeled “EMS HRIS Promo Histry” and “EMS HRIS Ceased Promo Histry.” (ECF No. 392 ¶ 13).
Erath lists the Applicant Documents in Exhibit 1 to his Declaration. (ECF Nos. 392 ¶ 14; 392-1).
In the Motion, Plaintiffs argue that, because they had previously retained BLDS, “a conflict of interest [] precludes Defendants from using BLDS as their expert witness both in the instant matter and moving forward in this proceeding.” (ECF No. 376 at 4-5). Plaintiffs argue that disqualification is necessary “to ensure that confidential information and data are safeguarded and privileged communications are protected.” (Id. at 5). In their Opposition, Defendants argue that Plaintiffs have failed to provide evidentiary support for their assertion that they provided BLDS with confidential or privileged information or formally engaged BLDS in this action. (ECF No. 393 at 11-13). As noted above, on reply, Plaintiffs provide a copy of the Engagement Letter and the single Invoice as proof that they had a confidential relationship with Griffin and BLDS, and argue that they were not required to establish that Griffin communicated confidential information to Erath for BLDS to be disqualified. (ECF Nos. 398 at 4; 399-1).
2. Legal Standard
“The Court has the inherent power to disqualify an expert witness when such relief is warranted.” Rodriguez v. Pataki, 293 F.Supp.2d 305, 311 (S.D.N.Y. 2003), aff'd, 293 F.Supp.2d 315 (S.D.N.Y. 2003) (citation omitted). “Disqualification is designed to protect the integrity of the judicial process by ensuring that experts do not use, even unwittingly, confidential information that they learned from a party in the course of an earlier engagement against that party in a later lawsuit.” Eastman Kodak Co. v. Kyocera Corp., No. 10 Civ. 6334 (CJS), 2012 WL 4103811, at *8 (W.D.N.Y. Sept. 17, 2012) (citation omitted). “Disqualification is a drastic remedy, however, and should be resorted to rarely.” Id. at 7 (citation omitted).
A party seeking to disqualify an expert whom it had previously retained but whom an adversary seeks to use as an expert bears the burden to establish: “(1) that it was objectively reasonable for the movant to believe that it had a confidential relationship with the expert and (2) that the movant's confidential information was in fact disclosed to the expert.” Rodriguez, 293 F.Supp.2d at 311; see Rouviere v. DePuy Orthopaedics, Inc., No. 1: 18-Civ. 4814 (LJL) (SDA), 2020 WL 6265659, at *2 (S.D.N.Y. Oct. 25, 2020) (quoting Rodriguez, 293 F.Supp.2d at 311); Auto-Kaps, LLC v. Clorox Co., No. 15 Civ. 1737 (BMC), 2016 WL 1122037, at *2 (E.D.N.Y. Mar. 22, 2016) (listing these two factors); In re Dreier LLP, 482 B.R. 863, 869 (Bankr. S.D.N.Y. 2012) (same). “‘Only if the answers to both questions are affirmative should the witness be disqualified.'” Dreier, 482 B.R. at 869 (quoting Koch Refin. Co. v. Jennifer L. Boudreaux M/V, 85 F.3d 1178, 1181 (5th Cir. 1996)). Some courts in the Second Circuit have also considered a third factor, “the public's interest in preserving judicial integrity and fairness as balanced against the party's right to the assistance of experts who possess specialized knowledge and the right of such experts to pursue their professional calling.” Auto-Kaps, 2016 WL 1122037, at *2 (citing Grioli v. Dental Int'l Mach. Corp., 395 F.Supp.2d 11, 14 (E.D.N.Y. 2005)); see In re Namenda Direct Purch. Antitrust Litig., No. 15 Civ. 7488 (CM) 2017 WL 3613663, at *8 (S.D.N.Y. Aug. 21, 2017) (finding that public policy did “not weigh against disqualifying” expert).
The party seeking disqualification bears the burden of establishing this standard, and cannot do so through “mere conclusory or ipse dixit assertions, ” but rather must identify “specific and unambiguous disclosures that if revealed would prejudice the party.” Kyocera, 2012 WL 4103811, at *8 (internal citations omitted).
3. Application of Legal Standard
a. Existence of confidential relationship
Courts consider several factors to determine “the reasonableness of a litigant's conclusion that it maintained a confidential relationship with an expert witness, ” including:
(1) the length of the relationship and frequency of contact with the expert, including the No. of meetings between the expert and the attorneys; (2) whether the expert was provided with confidential information, work product or documents, (3) whether the parties entered into a formal confidentiality agreement, (4) whether the expert was asked to agree not to discuss the case with the opposing parties or counsel, (5) whether the expert was retained to assist in the litigation or testify as a trial witness and/or receive a fee, (6) whether the moving party funded or directed the formation of the opinion to be offered at trial, and (7) whether the expert derived any of his specific ideas from work done under the direction of the retaining party.Dreier, 482 B.R. at 869; see Breitkopf v. Gentile, No. 12 Civ. 1084 (JFB) (AKT), 2014 WL 12843765, at *5 (E.D.N.Y. Mar. 24, 2014) (enumerating five similar factors).
Here, the essence of Plaintiffs' demand that Erath be disqualified is their assertion that a conflict of interest exists because Plaintiffs retained BLDS in this matter, “making the need for disqualification even more compelling to ensure that confidential information and data are safeguarded and privileged communications are protected.” (ECF No. 376 at 5). But Plaintiffs offer almost no evidence to substantiate this assertion: they do not detail how many times TKG met with or spoke to Griffin, whether a confidentiality agreement was put in place, or whether they asked Griffin not to discuss the case with anyone else, as the cases above direct the Court to consider. Although a declaration from a TKG attorney was submitted as part of the Motion, it contains none of these details. (ECF No. 377). See Rodriguez, 293 F.Supp.2d at 311-12 (in denying motion to disqualify, noting that “defendants did not proffer any affidavit to support [their] conclusory assertion” that they had “entrusted [the expert] with confidential data, analyses and information”). The Griffin Letter itself-which Plaintiffs did not attach to the Motion, but rather is found as an exhibit to the Complaint (ECF No. 1-3)-does indicate that Griffin analyzed “a data set” at TKG's request. (Id. at 2). At most, then, the Griffin Letter indicates that Griffin provided a preliminary answer to one question posed by TKG about a single snapshot of EMS data, but even assuming that question was posed in a conversation between TKG and Griffin, such a “conversation[] between a party and an expert carr[ies] no presumption of confidentiality.” Breitkopf, 2014 WL 12843765, at *5 (denying motion to disqualify expert where a single meeting occurred between counsel and expert).
The evidence submitted for the first time on reply-the Engagement Letter and the Invoice-does not alter this conclusion. (ECF No. 399-1). Although the Engagement Letter acknowledges that BLDS will keep confidential information that TKG shared (id. at 2), the Invoice reflects Griffin performing less than ten hours of work on a single analysis of the data and preparation of the Griffin Letter, which Plaintiffs submitted to the EEOC and attached to the Complaint, therefore rebutting any assertion that the data on which it relied was confidential. (ECF Nos. 376 at 3; 1-3). In addition, the record reflects that BLDS performed no further work for Plaintiffs after August 10, 2017, thus undercutting Plaintiffs' conclusory assertion that BLDS received confidential information about Plaintiffs for over two years. (ECF No. 376 at 3).
Finally, Judge Gardephe already considered, and rejected, Plaintiffs' identical argument for BLDS's disqualification when he pointed out that it was up to BLDS to decide for whom to provide expert services, and that “BLDS [was] not interested in doing more work for plaintiff.” (ECF No. 75 at 16-17, 19-20). Plaintiffs' suggestion that Defendants “secretly” engaged BLDS therefore rings hollow: Erath's history of acting as an expert for the City in employment litigation was a matter of public record that made his appearance in this case unsurprising, if not expected with a considerable degree of certainty. In any event, Plaintiffs point to no case management plan that required the City to disclose Erath as an expert any earlier, nor do they explain how the timing of the City's retention of BLDS in this matter is germane to whether Plaintiffs ever had a confidential relationship with BLDS.
The Court's Westlaw search revealed eleven employment litigation matters in federal court in which the City proffered Erath as an expert. See, e.g., Adams v. City of New York, No. 16 Civ. 3445 (RA), 2021 WL 1791182 (S.D.N.Y. May 5, 2021); Viera v. City of New York, No. 19 Civ. 5773 (SDA), 2021 WL 68982 (S.D.N.Y. Jan. 8, 2021); Lynch v. City of New York, No. 16 Civ. 5677 (KBF), 291 F.Supp.3d 537 (S.D.N.Y. Mar. 12, 2018); Perry v. City of New York, No. 13 Civ. 1015 (VSB), 2018 WL 1474401 (S.D.N.Y. Mar. 26, 2018); Foster v. City of New York, Nos. 14 Civ. 4142 & 14 Civ. 9220 (PGG), 2017 WL 11591568 (S.D.N.Y. Sept. 30, 2017); New York v. United Parcel Serv., Inc., No. 15 Civ. 1136 (KBF), 2016 WL 4735368 (S.D.N.Y. Sept. 10, 2016); Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, No. 96 Civ. 8414 (KMW), 2015 WL 5603020 (S.D.N.Y. Sept. 21, 2015); United States v. City of New York, 847 F.Supp.2d 395 (E.D.N.Y. 2012); Boucaud v. City of New York, No. 07 Civ. 11098 (RJS), 2010 WL 4813784 (S.D.N.Y. Nov. 16, 2010); United States v. City of New York, No. 07 Civ. 2067 (NGG) (RLM), 2010 WL 2838386 (S.D.N.Y. July 19, 2010); Scott v. City of New York, 591 F.Supp.2d 554 (S.D.N.Y. 2008).
Accordingly, the Court finds that Plaintiffs have failed to satisfy their burden to show that it was objectively reasonable for them “to believe that [they] had a confidential relationship with” BLDS. Rodriguez, 293 F.Supp.2d at 311.
b. Confidential disclosure
Even assuming that Plaintiffs had a confidential relationship with Griffin and BLDS past August 10, 2017, the Court nevertheless finds that Plaintiffs have not met their burden to show that TKG disclosed confidential information to BLDS. In the Motion, Plaintiffs fail to identify the source of the “snapshot” data comprised of information about “4, 140 EMS members.” (ECF No. 1-3 at 2). See Kyocera, 2012 WL 4103811, at *10 (denying motion to disqualify where movant failed to “describe the nature of the information [the expert] learned or what, if any of it, was confidential”). Defendants point out (and Plaintiffs do not dispute) that, in fact, Defendants produced this data to Plaintiffs in response to a Freedom of Information Law request. (ECF Nos. 391-2 at 15; 393 at 12). Thus, the “snapshot” that Griffin analyzed was Defendants' information, not Plaintiffs'. See Gordon v. Kaleida Health, No. 08 Civ. 378S(F), 2013 WL 2250506, at *17 (W.D.N.Y. May 21, 2013) (denying disqualification of expert where the information provided to expert was neither confidential nor privileged); Rodriguez, 293 F.Supp.2d at 311- 12 (denying disqualification where there was no evidence that “the movant's confidential information” had been divulged to expert) (emphasis added). Furthermore, Erath attests that he neither reviewed nor discussed with Griffin any of the analysis Griffin performed for TKG. (ECF No. 392 ¶ 9). Similarly, the Erath Report, which analyzes the Thompson Report, does not give any indication that Erath relied on the same “snapshot” that Griffin considered (even if it were confidential) or any other information confidential to Plaintiffs. (ECF No. 354-19). Finally, the fact that Griffin did not perform any analyses for Plaintiffs after August 10, 2017-and the fact that the analysis he did perform has been published by Plaintiffs-minimizes, if not eliminates, any risk that any confidential information Plaintiffs might have shared with him could have been compromised, much less that any such compromise would have prejudiced Plaintiffs.
Accordingly, the Court finds that Plaintiffs have failed to identify “specific and unambiguous disclosures that[, ] if revealed[, ] would prejudice” them. Kyocera, 2012 WL 4103811, at *8.
c. Public policy
Finally, the Court finds that public policy does not weigh in favor of disqualifying Erath. In contrast to Griffin, who performed, at most, a single brief analysis for Plaintiffs before this action commenced, Erath has provided grounds for the Court to conclude that he does not possess information that would prejudice Plaintiffs' ability to litigate this action. See Kyocera, 2012 WL 4103811, at *10. Under these circumstances, the Court finds that Plaintiffs have not presented any evidence that would undermine the public interest in preserving judicial integrity. See Gordon, 2013 WL 2250506, at *5 (noting that courts must “protect the integrity of the judicial process by ensuring that experts do not use, even unwittingly, confidential information that they learned from a party in the course of an earlier engagement against that party in a later lawsuit”).
In sum, the Court finds that Plaintiffs have failed to sustain their burden to show that BLDS and Erath should be disqualified from serving as Defendants' experts and recommends that Plaintiffs' request to preclude the Erath Report and strike references to it in Defendants' Class Opposition be denied.
B. Applicant List
1. Background
On October 5, 2020, Plaintiffs filed a letter-motion asking the Court to compel Defendants to produce, inter alia, what Plaintiffs defined as an “Application List”:
A complete list of all employees who applied for promotion to Captain, Deputy Chief, or Division Chief/Commander in the EMS Bureau of the FDNY from 2012 to the present with the promotion applied for and regardless of whether or not they participated in the interview, along with a designation when applicable as to why applicants did not so participate in the interview (i.e. withdrew application, found ineligible, etc.)(ECF No. 192 at 1 (the “10/5/20 Letter”)). In their October 30, 2020 response to the 10/5/20 Letter, Defendants referred to “the application materials previously produced, ” and agreed to produce by November 15, 2020 two categories of Demographic Data. (ECF No. 204 (the “10/30/20 Response”)).
Those two categories were the following: (1) Annual reports from the Human Resources Information System (“HRIS”), which is maintained by FDNY's Bureau of Technology Development and Systems (“BTDS”) that would include: (a) employee name; (b) employee identification number; (c) gender; (d) race; (e) date(s) of hire; (f) termination and rehire (if applicable); (g) rank; (h) title; and (i) all changes in rank or title that year with effective dates (the “HRIS Data”); and (2) Annual reports from the Payroll Management System (“PMS”) database and the City's time-keeping database, “CityTime, ” containing: (i) salary at start date; (b) total salary; (c) base salary; and (d) start and end dates of any leave that year and reasons for that leave (the “PMS Data”). (ECF No. 204 at 1-2). The Court incorporates by reference the detailed discussion of Demographic Data set forth in the Discovery Order dated December 15, 2020. (ECF No. 267 (the “Demographic Data Order”)).
During a conference with the parties on December 3, 2020, Defendants' counsel stated that Defendants had produced information regarding promotion applicants “in the form of operations orders” and “promotional packets, ” but “to the extent” Plaintiffs “want[ed] it in a list, ” she would “see if we can print out something.” (ECF No. 252 at 66). In a post-conference order, the Court ordered, “[a]s discussed at the conference, ” Defendants were to produce to Plaintiffs “a list of promotion applicants as Defendants referenced in” the 10/30/20 Response. (ECF No. 246 at 2 (the “12/3/20 Order”)).
On December 18, 2020, Defendants produced: (1) “revised HRIS files that resolves [sic] [P]laintiffs' 2 spreadsheets of individuals who were missing from the promo files or the snapshot files, ” and (2) “the lists of individuals applying for promotion between 2017 and 2020 as located in NYCAPS.” (ECF No. 391-1 (the “12/18/20 Production”)). According to Defendants' Rule 30(b)(6) witness Aurora Gabriel Perez, who is a former FDNY Human Resources Manager, the FDNY began using NYCAPS in 2017. (ECF Nos. 391 ¶ 3; 391-3 at 4).
NYCAPS refers to the New York City Automated Personnel System, which “allows [City] employees to get instant access to their Personal Information, Tax and Payroll, Benefit Information, Employment Verification, Jobs, and more.” See NYC Payroll Portals, https://www1.nyc.gov/site/opa/other-services/portals.page (last visited May 17, 2021).
Erath describes in his Declaration the two categories of documents he reviewed in preparing the Erath Report, that is, four HRIS spreadsheets as well as “a No. of documents showing actual applicants to Captain promotional opportunities between the years 2014 and 2019.” (ECF No. 392 ¶¶ 12-14). Erath attaches to his Declaration a two-page list of the latter category containing the title of the document and applicable bates-No. and which, he understands, “were provided to the Plaintiffs in response to a document request.” (ECF Nos. 392 ¶ 14; 392-1). None of the documents is entitled “Applicant List, ” “Application List, ” or anything resembling such a document. (ECF No. 392-1). Nor does the list appear to include the nine (9) NYCAPS spreadsheets referenced in Defendants' 12/18/20 Production. (Compare Id. with ECF No. 391-1.)
In the Motion, Plaintiffs acknowledge receipt of the 12/18/20 Production, but claim that it is only “partial” and is not “the complete Applicant List.” (ECF No. 376 at 6). Because Defendants have not produced the Applicant List pursuant to the 12/3/20 Order, Plaintiffs argue, Defendants should be precluded from using the Applicant List and any references to it should be stricken from the Class Opposition. (Id.)
In their Opposition, Defendants counter that “there is no ‘Applicant List, '” they have “turned over to Plaintiffs” all of the “applicant materials collected by FDNY Human Resources directly, or through NYCAPS, ” and therefore, Defendants have complied with all of their discovery obligations under the 12/3/20 Order. (ECF No. 393 at 14). In addition, Defendants argue that their counsel selected, “from the approximately 11, 228 promotional applicant file documents for the 2014-2019 Captain promotional openings, ” the documents provided to Erath listed on the exhibit to his Declaration, and that all of these documents were produced to Plaintiffs. (Id. at15). On reply, Plaintiffs argue that Defendants are “play[ing] numerous word games as to what documents Defendants gave BLDS, what documents BLDS reviewed, and how Defendants accessed these documents.” (ECF No. 398 at 5). They claim that Defendants have only provided a “data dump, ” and that, because Erath “does not deny the existence of the Applicant List, ” it must exist. (Id. at 6, 6 n.2).
2. Legal Standard
Federal Rule of Civil Procedure 37(b)(2)(A) permits a court to impose sanctions against a party for “Failure to Comply with a Court Order” as follows:
(A) For Not Obeying a Discovery Order. If a party . . . fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: . . . (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence . . . .Fed. R. Civ. P. 37(b)(2)(A)(ii). As this Court has explained in ruling on a previous sanctions motion in this case, “‘[a] court order directing compliance with discovery requests is a required predicate to Rule 37(b) sanctions.'” Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO, No. 18 Civ. 4476 (LJL) (SLC), 2021 WL 134566, at *3 (S.D.N.Y. Jan. 14, 2021) (quoting Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, No. 16 Civ. 1318 (GBD) (BCM), 2017 WL 3671036, at *18 (S.D.N.Y. July 18, 2017)); see Salahuddin v. Harris, 782 F.2d 1127, 1132-33 (2d Cir. 1986) (“The plain language of Rule 37(b) requires that a court order be in effect before sanctions are imposed.”). The court order need not be in writing. See Joint Stock Co., 2017 WL 3671036, at *18; JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. & Trade Servs., Inc., No. 03 Civ. 5562 (JGK) (AJP), 2005 WL 1958361, at *14 n.10 (S.D.N.Y. Aug. 16, 2005).
“The purpose of disciplinary sanctions under Rule 37 is threefold: (1) to ‘ensure that a party will not benefit from its own failure to comply'; (2) to serve as [a] ‘specific deterrent[] and seek to obtain compliance with the particular order issued'; [and] (3) ‘to serve a general deterrent effect on the case at hand and other litigation, provided that the party against whom they are imposed was in some sense at fault.'” Local 3621, 2021 WL 134566, at *3 (quoting S. New Eng. Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 149 (2d Cir. 2010) (internal citation omitted)).
“Sanctions under Rule 37 are ‘a harsh remedy to be used only in extreme situations.” Local 3621, 2021 WL 134566, at *3 (quoting Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009)). “The ‘court has broad discretion to determine the type of sanction to impose upon a party, based on all the facts of the case.'” Raymond v. City of New York, No. 15 Civ. 6885 (LTS)(SLC), 2020 WL 1067482, at *8 (S.D.N.Y. Mar. 5, 2020) (quoting Scantibodies Lab., Inc. v. Church & Dwight Co., No. 14 Civ. 2275 (JGK) (DF), 2016 WL 11271874, at *18 (S.D.N.Y. Nov. 4, 2016), adopted by, 2017 WL 605303 (S.D.N.Y. Feb. 15, 2017) (internal citation omitted); see Gurvey v. Cowan, Liebowitz & Lathman, P.C., No. 06 Civ. 1202 (LGS) (HBP), 2014 WL 715612, at *4 (S.D.N.Y. Feb. 25, 2014) (“The decision to impose sanctions ‘is committed to the sound discretion of the district court and may not be reversed absent an abuse of [that] discretion.'”) (quoting Luft v. Crown Publ'rs, Inc., 906 F.2d 862, 865 (2d Cir. 1990)).
Among the sanctions that Rule 37(b)(2) directs a court to make “as are just, ” include “striking the party's pleading, precluding the introduction of certain evidence, or dismissing the action or rendering a judgment by default.” Id. at *5 (citing Fed.R.Civ.P. 37(b)(2)). Any sanction under Rule 37(b)(2)(A) must “‘relate to the particular claim to which the discovery order was addressed.'” Seena Int'l Inc. v. One Step Up, Ltd., No. 15 Civ. 1095 (PKC) (BCM), 2016 WL 2865350, at *14 (S.D.N.Y. 2016) (quoting Daval Steel Prods., a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1358 (2d Cir. 1991)). The court must also order the disobedient party to pay reasonable attorneys' fees and expenses “unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2). “The party against whom sanctions are sought bears the burden of establishing that its noncompliance was either substantially justified or harmless.” Max Impact LLC v. Sherwood Grp., Inc., No. 09 Civ. 902 (JGK) (HBP), 2014 WL 902649, at *4 (S.D.N.Y. Mar. 7, 2014).
In determining whether to impose a sanction for noncompliance with a court order, and which one to impose, under Rule 37(b)(2), district courts in the Second Circuit consider four non-exhaustive factors: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of noncompliance.” S. New Eng. Tel. Co., 624 F.3d at 144 (citation omitted). “The court may also consider the full record in the case and any prejudice to the moving party.” Raymond, 2020 WL 1067482, at *8. Noncompliance with a court order may result in sanctions under Rule 37(b)(2) “notwithstanding a lack of wilfulness [sic] or bad faith, although such factors ‘are relevant . . . to the sanction to be imposed for the failure.'” Auscape Int'l v. Nat'l Geographic Soc'y, No. 02 Civ. 6441 (LAK), 2003 WL 134989, at *4 (S.D.N.Y. Jan. 17, 2003) (quoting 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2283, at 608 (2d ed. 1994)). “In analyzing prejudice to the moving party, ‘the Second Circuit has consistently rejected a ‘no harm, no foul' standard for evaluating discovery sanctions.'” Raymond, 2020 WL 1067482, at *8 (quoting Syntel Sterling Best Shores Mauritius Ltd. v. TriZetto Grp., 328 F.R.D. 100, 120 (S.D.N.Y. 2018)). “No single factor is dispositive.” Joint Stock Co., 2017 WL 3671036, at *21.
3. Application of legal standard
Having considered the full record as well as the standard set forth above, the Court recommends that Plaintiffs' request to preclude Defendants' reliance on the “Applicant List” and strike any references to it in the Class Opposition be denied. As an initial matter, from the record on the Motion, the “Applicant List” as Plaintiffs conceive it, i.e., one comprehensive list of all applicants for promotion at EMS from 2012 to the present, does not appear to exist. As the testimony of Perez demonstrates, FDNY did not begin using NYCAPS until 2017, so a list of promotional applicants for periods before 2017 does not exist in that database. (ECF Nos. 391 ¶ 3; 391-3 at 4). And Defendants have produced the NYCAPS promotional applicant lists that do exist for 2017 to 2020. (ECF No. 391-1). At the December 3, 2020 conference with the Court, Defendants' counsel agreed to “see if we can print out something.” (ECF No. 252 at 66). In the 12/3/20 Order, the Court ordered, “[a]s discussed at the conference, ” Defendants to produce that list. (ECF No. 246 at 2). Defendants then produced the list that did exist, for the full time period that FDNY has been using NYCAPS. (ECF No. 391-1). Defendants have therefore complied with the 12/3/20 Order.
Even if Plaintiffs' conceived “Applicant List” existed and had not been produced, Defendants have rebutted any suggestion that Erath relied on it in preparing his Report, as shown by the list of sources attached to the Erath Declaration. (ECF No. 392-1). Indeed, Erath does not appear to have reviewed even the NYCAPS promotional applicant lists that do exist and that Defendants produced. (Compare Id. with ECF No. 391-1). Plaintiffs provide no support for their contention that Erath's non-denial of the existence of an Applicant List means that it must exist. If Plaintiffs continue to doubt Erath's assertion that the list attached to his Declaration is the complete list of sources on which he relied for the Erath Report, nothing precludes Plaintiffs from asking him at his deposition whether he has ever seen an “Applicant List” as Plaintiffs conceive of it, and whether he relied on it for his Report.
Fourth, to the extent that Plaintiffs are demanding that Defendants produce the list that their counsel “culled from the approximately 11, 228 promotional applicant file documents for the 2014-2019 Captain promotional openings, ” (ECF No. 393 at 15), a list prepared by counsel in the midst of litigation would constitute non-discoverable work product for which Plaintiffs have not, at least on this Motion, demonstrated both the requisite “substantial need” to prepare their case and inability, without “undue hardship” to “obtain [its] substantial equivalent by other means.” Fed.R.Civ.P. 26(b)(3)(A); see Bovis Lend Lease, LMB, Inc. v. Seasons Contracting Corp., No. 00 Civ. 9212 (DF), 2002 WL 31729693, at *11 (S.D.N.Y. Dec. 5, 2002) (quoting Fed.R.Civ.P. 26(b)(3) and holding that movant failed to show sufficient need or hardship to warrant disclosure of adversary's work product).
Accordingly, on the record on this Motion, the Court finds that Plaintiffs have failed to show that Defendants did not comply with the Court's 12/3/20 Order, and therefore, recommends that Plaintiffs' request to preclude Defendants from relying on an “Applicant List” and strike any references in the Class Opposition be denied.
C. Untimely-Produced Documents
1. Background
Pursuant to a Standing Order of this Court requiring early mediation in this action, the parties were subject to the Mediation Discovery Protocols pursuant to which Defendants were required to produce by November 13, 2018 “[f]or the most recent 5 years of employment, . . . the file created for any disciplinary actions taken against the plaintiff.” (ECF No. 25 at 2-3). The deadline for exchange of initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) was March 25, 2019. (ECF No. 37 at 78). Among the information required to be disclosed under Rule 26(a)(1) was “a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment . . . .” Fed.R.Civ.P. 26(a)(1)(A)(ii). The deadline for all class certification discovery was November 25, 2020. (ECF No. 189).
The Court notes that Plaintiffs' citation of this Rule in their Motion misleadingly omits the underlined phrase in what appears to be Plaintiffs' attempt to suggest that Defendants were required to produce copies of all such documents at the time of initial disclosures. (ECF No. 376 at 8). Rule 26(a)(1) by its terms does not require actual production of the documents at the time of the initial disclosures. See McDermott v. Liberty Maritime Corp., No. 08 Civ. 1503 (KAM) (ALC), 2011 WL 13300062, at *4 (E.D.N.Y. May 13, 2011). Such an obvious misstatement of a Federal Rule of Civil Procedure compromises Plaintiffs' credibility on this Motion.
On January 14, 2019, Defendants produced summaries and dispositions of Plaintiff Mascol's [XXXXX] (the “1/14/19 Production”). (ECF Nos. 391-4; 393 at 17; 36-4 at 2 (transcript of the January 15, 2019 conference, at which Plaintiffs' counsel characterized Defendants' initial production as “basically amount[ing] to personnel files for the two representative plaintiffs.”)). Those records reflect that Mascol [XXXXX] (ECF No. 391-4). [XXXXX]
On September 25, 2020, during Mascol's deposition, Defendants' counsel sought to ask Mascol about the [XXXXX]. (ECF No. 377-1 at 6). Plaintiffs' counsel objected, and a conference with the Court followed. (Id.) After hearing the parties' positions, the Court ordered that questions concerning the [XXXXX] were “appropriate” on the issue of “Mascol's credibility and suitability as a representative of the class, which is certainly relevant to class[]” certification. (Id. at 10). Accordingly, the Court permitted Defendants' counsel to ask “a basic question about the [XXXXX]. . . on a categorical level of. . . the nature of the[XXXXX] . . . .” (Id.; see Id. at 10-11 (permitting “a very brief series of questions so that we understand the nature of the activity that led to the incident without getting into great details about all of the events”)). Defendants' counsel then asked Mascol, “what was the conduct that led to the [] [XXXXX]” to which Mascol responded, [XXXXX] (Id. at 12). Defendants' counsel sought to ask follow-up questions, including the names of other employees involved in the[XXXXX] to which Plaintiffs' counsel objected and resulted in another attempt to call the Court, which was then unavailable. (Id. at 13-19). Defendants' counsel stated that Defendants intended to find and produce to Plaintiffs the underlying, [XXXXX]on the ground that it “goes to [Mascol's] standing and ability to serve as a class representative . . . .” (Id. at 22). Defendants' counsel added, “I have no documents in my possession that I have not turned over to plaintiffs. I will, however, seek to find the, [XXXXX] and I will turn that over to plaintiff.” (Id. at 29).
On November 30, 2020, Plaintiffs moved for a protective order “preventing Defendants from accessing, putting on the record and/or utilizing Plaintiff Renae Mascol's [XXXXX]not related to this action.” (ECF No. 242 (“Plaintiffs' Protective Order Motion”). Plaintiffs' Protective Order Motion did not argue that such a production would be untimely, but rather that the records were “irrelevant and highly prejudicial.” (Id. at 5). In opposition to Plaintiffs' Protective Order Motion, Defendants alleged that, after Mascol's deposition, they had “located” documents revealing that [XXXXX] which Defendants contended were relevant to whether Mascol credible and appropriate to serve as a class representative. (ECF No. 247 at 3- 4 (“Defendants' Protective Order Opposition”)). On December 9, 2020, the Court denied Plaintiffs' Protective Order Motion, holding that Mascol's [XXXXX]were relevant to the question whether Defendants “had a legitimate, non-discriminatory reason for not promoting” Mascol and therefore discoverable. (ECF No. 257 at 11-13 (the “12/9/20 Order”)). On December 16, 2020, the Court denied Plaintiffs' motion to reconsider the 12/9/20 Order, which, the Court explained, did not “impose[] a limit on the type or scope of information about [XXXXX] that would be discoverable.” (ECF No. 269 at 2 (the “12/16/20 Order”)).
On January 18, 2021, Plaintiffs filed the Class Motion (ECF No. 300). On March 5, 2021, nearly three months after the 12/9/20 Order, Defendants produced 218 pages of Mascol's disciplinary records (the “3/5/21 Production”)). (ECF No. 376 at 9). On March 11, 2021, Defendants filed the Class Opposition, which included three exhibits (ECF Nos. 354-5, 354-28, and 354-29 (the “Designated Documents”)) that Plaintiffs claim they did not receive until either the 3/5/21 Production or the filing of the Class Opposition. (Id.).
ECF No. 354-5 is the FDNY's 2020-2022 Diversity and Inclusion Strategic Plan. ECF No. 354-28 is a March 8, 2013 letter to Mascol entitled (the “3/8/13 Notice”). ECF No. 354-29 is a January 13, 2013 FDNY Internal Memorandum from Belinda Delgado to Robert Wallace summarizing (the “1/13/13 Memo”).
In the Motion, Plaintiffs argue that Defendants were obligated to produce the Designated Documents no later than the November 25, 2020 class certification discovery deadline, and by waiting until after Plaintiffs filed the Class Motion, Plaintiffs have been prejudiced. (ECF No. 376 at 10-12). Plaintiffs also object to what they characterize as Defendants' use of ECF No. 354-29 “to launch into a wholly improper and unsubstantiated tirade of defamatory accusations against Plaintiffs and Plaintiffs' counsel.” (Id. at 12-13).
In their Opposition, Defendants respond that, because they intend to use the Designated Documents only for impeachment purposes, they were not required to produce them previously. (ECF No. 393 at 17). Defendants also contend that the 1/14/19 Production included information about the [XXXXX], about which Plaintiffs could have, but failed to, inquire further. (Id.) Finally, Defendants contend that Mascol's [XXXXX] is necessary for the Court to have “full information to make a decision on behalf of non-represented class members” pursuant to Federal Rule of Civil Procedure 23. (Id. at 18-19).
Defendants state that they “offer this evidence” in their Class Opposition “for impeachment purposes to demonstrate Plaintiff Mascol lied under oath and therefore is unfit to serve as a class representative because of her questionable credibility and trustworthiness.” (ECF No. 393 at 16).
In reply, Plaintiffs argue that Defendants' intention to use the Designated Documents only for impeachment amounts to a concession that Mascol's [XXXXX] is “irrelevant.” (ECF No. 398 at 7). Because the [XXXXX], Plaintiffs argue, her [XXXXX] is not relevant to Plaintiffs' failure-to-promote claims in this action or otherwise “central to the claims and/or defenses in this action, ” and it cannot be used to impeach her credibility as a representative plaintiff. (Id. at 7-8). Finally, Plaintiffs contend that the Court's obligation under Rule 23 “does not allow for the improper conduct exhibited by Defendants in this action, which is inexcusable.” (Id. at 8).
2. Legal standards
As noted above, Rule 26(a)(3) requires disclosure-either categorically or by production of copies-of information a party may use to support claims or defenses “unless the use would be solely for impeachment.” Fed.R.Civ.P. 26(a)(1)(A)(ii). Impeachment evidence is “‘[e]vidence used to undermine a witness's credibility.'” Wu v. Metro-North Commuter R.R., No. 14 Civ. 7015 (LTS) (FM), 2016 WL 5793971, at *8 (S.D.N.Y. Aug. 4, 2016) (quoting Black's Law Dictionary (10th ed. 2014)); see Friedman v. Rehal, 618 F.3d 142, 153 (2d Cir. 2010) (defining impeachment evidence as “evidence that is offered to discredit a witness . . . to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] or [her] testimony”) (internal citations omitted).
Federal Rule of Civil Procedure 37(c)(1) provides that, “[i]f a party fails to provide information . . . as required by Rule 26(a) . . ., the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The range of sanctions a court may impose on a party who fails to comply with its Rule 26(a) obligations “includes-but is not limited to-orders deeming certain facts established; permitting an adverse inference instruction; striking pleadings; prohibiting the ‘disobedient' party from making specific claims or introducing certain matters into evidence; dismissing a claim or the entire action or granting default judgment against the disobedient party; or entering an order of contempt.” Doug's Word Clocks.com Pty Ltd. v. Princess Int'l Inc., 323 F.R.D. 167, 172 (S.D.N.Y. 2017) (internal citations omitted). “Pursuant to Rule 37(c)(1), preclusion of evidence” that a party fails to disclose under Rule 26(a)(1)(A) “or another listed sanction is automatic unless the non-disclosure was substantially justified or harmless.” Vaccaro v. Waterfront Homes Marins, No. 10 Civ. 4288 (NRB), 2011 WL 5980997, at *5 (S.D.N.Y. Nov. 30, 2011).
“A failure to disclose is substantially justified when ‘there is justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request, or if there exists a genuine dispute concerning compliance.'” Wu, 2016 WL 5793971, at *9 (quoting AIG Glob. Asset Mgmt. Hldgs. Corp. v. Branch, No. 04 Civ. 8803 (RMB) (THK), 2005 WL 425494, at *1 (S.D.N.Y. Feb. 18, 2005)). Under Rule 37(c)(1), harmlessness requires an “absence of prejudice” to the receiving party. Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 159 (S.D.N.Y. 2012).
“A district court has broad discretion to impose sanctions under Rule 37.” McDermott, 2011 WL 13300062, at *2. As discussed above, sanctions serve multiple purposes, including “ensur[ing] that the offending party does not benefit from its noncompliance, act[ing] as a deterrent against future violations, and seek[ing] compliance with the discovery order.” Id. “The fundamental purpose of Rule 37(c) is to prevent the practice of ‘sandbagging' an adversary with new evidence.” Feltenstein v. City of New Rochelle, No. 14 Civ. 5434 (NSR), 2018 WL 3752874, at *6 (S.D.N.Y. Aug. 8, 2018).
Despite these important purposes, “[p]recluding evidence is a severe sanction.” McDermott, 2011 WL 13300062, at *2; see Feltenstein, 2018 WL 3752874, at *6 (explaining that preclusion of evidence under Rule 37(c)(1) “remains a drastic remedy and should be exercised with discretion and caution”) (internal citations omitted). In deciding whether to exercise discretion to impose sanctions under Rule 37(c)(1), district courts are expected to consider: (1) the disobedient party's explanation for its failure to comply with the disclosure requirement; (2) the importance of the late-disclosed evidence; (3) the prejudice suffered by the opposing party; and (4) the possibility of a continuance to mitigate any such prejudice. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (quoting Softel, Inc. v. Dragon Med. & Sci. Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997)). “Because preclusion is a harsh remedy, depending on the circumstances, lesser sanctions may be more appropriate[, ]” and “[t]he district court may fashion other forms of appropriate sanctions, such as awarding attorney's fees and reasonable expenses, or other types of monetary sanctions.” McDermott, 2011 WL 13300062, at *2 (citing Fed.R.Civ.P. 37(b)(2)).
3. Application of legal standards
The Court finds it difficult to avoid the conclusion that Plaintiffs' request to preclude consideration of evidence of Mascol's [XXXXX] on the Class Motion is, in fact, their third attempt to argue this issue, and for that reason alone, grounds to deny the request. As explained above, in the 12/9/20 Order, the Court held that information about Mascol's [XXXXX]was relevant and discoverable, and denied Plaintiffs' request for a protective order. (ECF No. 257 at 11-13). In the 12/16/20 Order, the Court denied Plaintiffs' request for reconsideration of that conclusion. (ECF No. 269). And in the Motion, Plaintiffs again argue that the Court should not consider Mascol's [XXXXX] because it is “irrelevant.” (ECF No. 398 at 7). The fact that this is Plaintiffs' “third bite at the apple” is grounds to deny their request. See Arthur Glick Truck Sales, Inc. v. Stuphen East Corp., 965 F.Supp.2d 402, 404 (S.D.N.Y. 2013) (denying plaintiff's third request for the same relief and quoting Schuster v. Dragone Classic Motor Cars, No. 99 Civ. 2163 (LAK), 2000 WL 1585685, at *2 (S.D.N.Y. Oct. 25, 2000)).
Neither of the parties' submissions substantively explain the two factors pivotal to the Court's consideration of whether to impose a sanction under Rule 37(c)(1): substantial justification and harmlessness. See Wu, 2016 WL 5793971, at *9. The Court interprets Defendants to be arguing that the timing of the 3/5/21 Production was “substantially justified” by their intention to rely on the documents for impeachment purposes only. It is certainly true that “Defendants d[id] not have an obligation to produce the documents if they are using the documents solely for impeachment.” McDermott, 2011 WL 13300062, at *4. Defendants insist that they only intend to use the 3/5/21 Production to impeach Mascol's credibility as a proposed class representative. (ECF No. 393 at 16-17). If that is their position, they will be held to it, and may not use the documents for any purpose than impeachment of Mascol in connection with the Class Motion. As impeachment evidence only then, under Rule 26(a)(1)(A)(ii), Defendants were not required to produce it sooner. See Stephen v. Hanley, No. 03 Civ. 6226 (KAM) (LB), 2009 WL 1437613, at *6 (E.D.N.Y. May 20, 2009) (denying sanctions because “defendants were under no obligation to disclose” information they did not intend to use “in support of their defenses”). Accordingly, the Court finds Plaintiffs have failed to establish that the timing of Defendants' production of the Designated Documents was not substantially justified. See Doug's Word Clocks.com, 323 F.R.D. at 172 (noting that the “moving party bears the burden of showing that its adversary failed [to] timely [] disclose information required by Rule 26”) (citation omitted).
Turning to the question of harmlessness, Plaintiffs have known since Mascol's deposition in September 2020 that Defendants intended to use her [XXXXX] as a means to impeach her credibility, and Mascol, having been through the [XXXXX] . Despite Defendants' counsel's reference during Mascol's deposition and in their Protective Order Opposition to the existence of additional “documentary evidence” about the [XXXXX], Plaintiffs did not move to compel Defendants to produce this information or otherwise seek discovery of it; instead they sought to preclude it. (ECF Nos. 242; 247 at 4; 377-1 at 22). See Stephen, 2009 WL 1437613, at *6 (in denying sanctions motions, noting that plaintiffs never moved to compel production of documents as to which they sought sanctions for failure to disclose). Plaintiffs then offer only conclusory assertions about prejudice from Defendants' delayed production of the 3/8/13 Notice and the 1/13/13 Memo. (ECF Nos. 376 at 11-12; 398 at 7-8). As the named recipient of the 3/8/13 Notice, however, Plaintiffs' claim of prejudice from its late production falls short; Mascol herself should have had this document, and if she did, would have been obligated to produce it in this action. Cf. McDermott, 2011 WL 13300062, at *4 (finding that “Plaintiff's prejudice is mitigated because the records are his own documents”). It is unclear whether Mascol previously saw the 1/13/13 Memo, but Plaintiffs do not specify prejudice from its delayed production, instead insisting that it is not relevant because the [XXXXX]would not preclude Mascol from being considered for a promotion. (ECF Nos. 376 at 11; 398 at 8). By arguing that “the nature of the [XXXXX]are not central to the claims or defenses in this action, ” (ECF No. 398 at 8), Plaintiffs undermine their request for preclusion of the Designated Documents; if this were true, Defendants would have had no duty to disclose them under Rule 26(a), which applies only to information a party “may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A)(ii); see Stephen, 2009 WL 1437613, at *6. But in any event, Plaintiffs' argument goes to the merits of their promotion claims, which is not the focus of either this Motion or the Class Motion. See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013) (explaining that “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage”). Whether Mascol was or was not eligible for promotion is not determinative of the salient issue of Mascol's credibility and suitability as a proposed class representative. (See § III.D.3, infra).
Finally, even if Plaintiffs had established that Defendants were required to produce the Designated Documents at an earlier date, the deadline for Plaintiffs' reply in further support of the Class Motion has already been stayed pending resolution of this Motion (ECF No. 365), and as a result, Plaintiffs will have had an extended time to review the Designated Documents, and any others in the 3/5/21 Production pertaining to Mascol's disciplinary history, and prepare their arguments in response. The Court's actions have therefore already mitigated any potential prejudice to Plaintiffs. See Feltenstein, 2018 WL 3752874, at *9 (finding that preclusion was not appropriate where court had already postponed trial pending resolution of discovery dispute and that extending discovery deadlines would be an adequate remedy “to correct prejudice to Plaintiff”); Stephen, 2009 WL 1437613, at *5 (finding that preclusion of delayed production was not appropriate where plaintiffs were not harmed and imposing remedy of reopened deposition at defendants' expense). And, as noted above, Plaintiffs are not seeking more discovery about Mascol's [XXXXX]-in fact, the opposite-such that, unlike Feltenstein and Stephen, reopening discovery on this topic is not necessary at this juncture.
Accordingly, the Court finds that Plaintiffs have not established that the timing of Defendants' production of the Designated Documents has caused any prejudice that was not already rectified by the extension of the deadline for Plaintiffs' reply in further support of the Class Motion, and therefore neither preclusion nor monetary sanctions are justified in these circumstances.
D. Defendants' Comments About Plaintiff Renae Mascol and Plaintiffs' Counsel
1. Background
As evidenced by the excerpts of Mascol's deposition that the parties include in their filings on this Motion-which the Court finds unnecessary to repeat and simply incorporates by reference-the dialogue between counsel in this action has deteriorated to a disturbingly low level. (ECF Nos. 376 at 14-15; 393 at 21-26). Multiple examples of this deterioration appear throughout Mascol's deposition-during which the parties sought the Court's intervention twice. (ECF No. 377-1). The portion of Mascol's testimony at issue in this aspect of the Motion is Mascol's answer, in response to the question the Court permitted Defendants' counsel to ask about the nature of the[XXXXX] (ECF No. 377-1 at 12). In their Class Opposition, Defendants argue that Mascol's answer was untrue, rendering her inadequate to serve as a class representative and TKG inadequate to serve as class counsel. (ECF No. 355 at 30-34).
In the Motion, Plaintiffs argue that Defendants have taken the dialogue to an even lower level in their Class Opposition by accusing Mascol of lying and TKG of being complicit in that lying. (ECF No. 376 at 15). Plaintiffs contend that “Defendants knew or should have known that the factual assertions that form the basis of the attacks on Plaintiff Mascol are untrue, ” and therefore, the “purpose of these false accusations is wanton, oppressive, and bad faith [sic], ” such that they must be stricken. (Id. at 17). As proof of the untruth of Defendants' accusations, Plaintiffs submit declarations from Mascol (the “Mascol Declaration”) and, another[XXXXX] EMS employee involved in (the “[XXXXX] Declaration”). (ECF Nos. 378, 379). Plaintiffs also attach to their Reply the portions of the Class Opposition they ask the Court to strike-the entirety of Defendants' argument (including legal citations) that Mascol is not an adequate representative and that TKG is not adequate class counsel. (ECF No. 399-2 at 30-34). Plaintiffs invoke the Court's “‘inherent power to regulate litigation and sanction parties for conduct that is undertaken in bad faith, vexatiously, wantonly, or for oppressive reasons.'” (ECF No. 376 at 18 (quoting In re Bear Stearns Cos., Inc. Secs., Deriv., & ERISA Litig., 308 F.R.D. 113, 120 (S.D.N.Y. 2015) (internal citation omitted)).
In the Opposition, Defendants argue that the deposition testimony of Mascol and other witnesses in this action contradict both the Mascol Declaration and the [XXXXX]Declaration, and thus reinforce that Mascol is an inadequate class representative and TKG is inadequate to serve as class counsel. (ECF No. 393 at 20-27).
In their Reply, Plaintiffs maintain that the record “exonerates” Mascol of lying and press the Court to hold Defendants “accountable for their callous disregard for the integrity of this proceeding” by striking “Defendants' spurious and defamatory comments.” (ECF No. 398 at 9- 11).
2. Legal Standard
In addition to the discretionary authority to award sanctions under Rule 37 discussed above, district courts have “the power to sanction and curb vexatious litigation practices” derived “from the very nature of courts and their need to be able ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'” Scott v. Dime Sav. Bank of N.Y. FSB, No. 88 Civ. 2298 (PKL), 1993 WL 330439, at *4 (S.D.N.Y. Aug. 23, 1993) (quoting United States v. Int'l Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991) (internal citation omitted)). As the Second Circuit has explained:
One component of a court's inherent power is the power to assess costs and attorneys' fees against [a litigant] where a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Sanctions imposed under a court's inherent power . . . depend[] not on which party wins the lawsuit, but on how the parties conduct themselves during the litigation.Int'l Bhd. of Teamsters, 948 F.2d at 1345 (internal citations omitted). “The Supreme Court has cautioned that because of the ‘very potency' of a court's inherent power, it should be exercised ‘with restraint and discretion.'” Id. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). Therefore, “a particularized showing of bad faith” is required “to justify the use of the court's inherent power, ” id., predicated on “clear evidence that the challenged actions are entirely without color, and [are taken] for reasons of harassment or delay or for other improper purposes.” Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986) (internal citation omitted); Potts v. Postal Trucking Co., No. 17 Civ. 2386 (ARR) (VMS), 2018 WL 794550, at *3 (E.D.N.Y. Feb. 8, 2018) (explaining that sanctions are not warranted under court's inherent power unless “clear and convincing evidence” shows that the conduct was “so beyond the pale, ” was in “bad faith, ” or “was taken for an improper purpose, harassment or delay”). As the Second Circuit has also noted, applying this standard to “determin[e] whether a case or conduct falls beyond the pale is perhaps one of the most difficult and unenviable tasks for a court.” Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194 F.3d 323, 341 (2d Cir. 1999).
“[A] claim is entirely without color when it lacks any legal or factual basis.” Sierra Club v. U.S. Army Corps of Eng'rs, 776 F.2d 383, 390 (2d Cir. 1985) (emphasis added) (citation omitted). A claim is colorable “when it has some legal and factual support, considered in light of the reasonable beliefs of the individual making the claim.” Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir. 1980). Similarly, “[b]ad faith can be inferred when the actions taken are ‘so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose.'” Schlaifer Nance & Co., 194 F.3d at 338 (quoting People of the State of New York v. Operation Rescue Nat'l, 80 F.3d 64, 72 (2d Cir. 1996)).
3. Application of legal standard
The question for this Court on this aspect of the Motion is whether Plaintiffs have shown by clear and convincing evidence that Defendants' challenges to Mascol's credibility and TKG's adequacy are “entirely without color, [or are taken] for reasons of harassment or delay or for other improper purposes.” Oliveri, 803 F.2d at 1272. After reviewing the record on the Motion, the Court finds that Plaintiffs have failed to meet that burden.
First, Mascol's credibility, as well as the “character, competence and quality of counsel” seeking to represent the class, are questions that the District Court must scrutinize in deciding the Class Motion. Kingsepp v. Wesleyan Univ., 142 F.R.D. 597, 599 (S.D.N.Y. 1992) (quoting Smith v. Josten's Am. Yearbook Co., 78 F.R.D. 154, 163 (D. Kan. 1978)); see Savino v. Comput. Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998) (“To judge the adequacy of representation, courts may consider the honesty and trustworthiness of the named plaintiff.”); In re NYSE Specialists Sec. Litig., 240 F.R.D. 128, 144 (S.D.N.Y. 2007) (“The Second Circuit has allowed for the consideration of characteristics such as honesty, trustworthiness, and credibility in judging the adequacy of a class representative pursuant to Rule 23(a).”) (collecting cases). Therefore, Defendants' comparison of Mascol's description during her deposition of the [XXXXX]is not a subject that is “beyond the pale” to be raised in the Class Opposition. Schlaifer Nance & Co., 194 F.3d at 341.
Second, Plaintiffs have not shown that Defendants' questioning of Mascol during her deposition or their arguments in the Class Opposition were in bad faith or for an improper purpose. Defendants have every right to oppose the Class Motion, even vigorously. See Schlaifer Nance & Co., 194 F.3d at 340 (finding that “aggressive” attacks on witness's demeanor was “a fully acceptable and expected litigation tactic” that was not sanctionable). Indeed, to minimize the risk of overreach in this case the Court intervened during the deposition to limit the scope of Defendants' questions to “a categorical” description of the [XXXXX]. (ECF No. 377-1 at 10). See Schlaifer Nance & Co., 194 F.3d at 340 (noting that the district court previously “put a stop to” conduct that would have “crossed the line” into bad faith). Based on Mascol's deposition testimony, Defendants' counsel believed that Mascol's answer of the nature of the [XXXXX]-questioning the Court specifically authorized after noting that Mascol's credibility was relevant-was at least inconsistent, if not contrary to, [XXXXX]. (Compare ECF No. 377-1 at 12 with ECF No. 354-28). While Plaintiffs dispute at length whether there was any such discrepancy (ECF No. 376 at 15-18), again, whether Mascol truthfully answered the question during her deposition, and if she did not, whether it impacts her ability to serve as a class representative, is a proper inquiry for the District Court in deciding the Class Motion. The District Court may well decide that Defendants' attack on Mascol's credibility is not “so sharp as to jeopardize the interests of absent class members should such attack[] render [Mascol] inadequate.” Lapin v. Goldman Sachs & Co., 254 F.R.D. 168, 177-78 (S.D.N.Y. 2008) (finding that “minor discrepancy” between statements did “not impugn Plaintiff's credibility in any meaningful way”). Alternatively, the District Court may conclude that Mascol's deposition testimony represented “a deliberate attempt to conceal information” in which TKG was complicit, sufficient to justify denial of class certification. Kaplan v. Pomerantz, 132 F.R.D. 504, 509-10 (N.D.Ill. 1990) (granting motion to decertify class after named plaintiff gave false deposition testimony in which plaintiff's counsel “was at least a silent accomplice”). Either way, the District Court should have the opportunity to hear the arguments, review the evidence, and render a determination on Mascol's credibility and adequacy, and that of her counsel. Accordingly, the Court finds that Defendants' arguments in the Class Opposition that Mascol's credibility compromises her adequacy to serve as a class representative are not in bad faith or for an improper purpose.
Finally, the cases on which Plaintiffs rely (see ECF No. 376 at 18) involve egregious conduct not evidenced in the record on this Motion and therefore do not support the Court's exercise of its inherent authority to sanction Defendants by striking portions of the Class Opposition. See Potts, 2018 WL 794550, at *4 (denying motion for sanctions on additional ground that plaintiffs failed to provide sufficient legal support). In Bear Stearns, the court sanctioned a plaintiff who went to great lengths to obstruct the deposition of her husband, who had placed the orders for stock purchases at issue in the litigation. 308 F.R.D. at 116-17, 120. Those efforts included evading service of the subpoena to the husband, asserting baseless objections to the subpoena, refusing to confirm a date for the husband's deposition, failing to respond to correspondence from defendants' counsel, and causing defendants' counsel to travel across the country for a deposition at which the husband failed to appear, amounting to over $100,000 in attorneys' fees and costs. Id. at 118-19. In Truong v. Hung Thi Nguyen, 503 Fed.Appx. 34 (2d Cir. 2012), despite the plaintiff's history of contempt orders, the Second Circuit vacated the imposition of sanctions in the absence of a specific finding that “clear evidence” demonstrated plaintiff's bad faith or improper purpose. Id. at 36. In DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124 (2d Cir. 1998), the Second Circuit affirmed an award of attorneys' fees and costs as sanctions where the defendant initially denied the existence of certain documents, and then inexplicably produced them the day after fact discovery closed, necessitating additional depositions and representing “a pattern of behavior which could reasonably be construed as a bad faith effort to thwart plaintiffs' discovery efforts.” Id. at 135-36. In Sassower v. Field, 973 F.2d 75 (2d Cir. 1992), the Second Circuit affirmed an award of monetary sanctions against two pro se plaintiffs whose baseless motions and repeated efforts to relitigate the same issues multiple times, the district court found, represented a pursuit of “th[e] litigation as if it was a holy war and not a court proceeding, managing these proceedings in a fashion that vexatiously, wantonly and for oppressive reasons increased the legal fees enormously.” Id. at 78. In Dime Sav. Bank of N.Y., the court warned, but did not sanction, pro se plaintiffs who were “engaged in a program of delay, obfuscation, and circumlocution in an effort to harass the defendant . . . .” 1993 WL 330439, at *2, 4-5. Finally, in Int'l Mining Co., Inc. v. Allen & Co., Inc., 567 F.Supp. 777 (S.D.N.Y. 1983), the court imposed the sanction of dismissal of the complaint based on the plaintiff's “total failure to produce documents and the pervasive nature of the inadequacies of its answers to interrogatories.” Id. at 789.
Plaintiffs have not demonstrated that the circumstances in the cited cases exist here. Candidly, it is Plaintiffs who have insisted on relitigating the issue of Mascol's three times. (See § III.C.1, supra). In the absence of “clear evidence” that Defendants' arguments about Mascol's credibility in the Class Opposition are “entirely without color and taken for improper purposes, ” Kortright Cap. Ptrs. LP v. Investcorp Inv. Advisers Ltd., 327 F.Supp.3d 673, 688, the Court respectfully recommends that “restraint and discretion” counsel against imposing Plaintiffs' requested sanction of striking portions of the Class Opposition. United States v. HSBC Bank USA, N.A., 863 F.3d 125, 136 (2d Cir. 2017) (quoting Chambers, 501 U.S. at 44).
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that Plaintiffs' Motion be DENIED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Liman.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).