Opinion
02 Civ. 2832 (SAS)
November 7, 2003
Steven T. Mitchell, Esq., Steven T. Mitchell, P.C., New York, NY, for Plaintiff
Mary Schuette, Esq., Jonathan A. Fields, Esq., Barbara Jane Carey, Esq., Geraldine R. Eure, Esq., Consolidated Edison Co. of New York, Inc., New York, NY, for Defendants Consolidated Edison Co. of New York, Inc., George Greenwood, and Kenneth Barouch
Laurie Berke-Weiss, Esq., Berke-Weiss Pechman LLP, New York, NY, for Defendant William Wallace
MEMORANDUM OPINION AND ORDER
David Perez is suing his employer, Consolidated Edison Co. of New York, Inc., and others, for racial discrimination. He now objects, pursuant to Federal Rule of Civil Procedure 72(a), to an order of United States Magistrate Judge Frank Maas denying him discovery pertaining to ConEd's investigation of an unrelated sexual harassment complaint. For the reasons that follow, I affirm Judge Maas' order.
I. BACKGROUND
On September 11, 2003, Judge Maas ordered ConEd to produce to Perez certain "complaints of unlawful discrimination" made to its Equal Employment Office ("EEO"). See 9/11/03 Transcript at 51-52, Ex. B to 10/31/03 Affirmation of Jonathan A. Fields, counsel to FedEx ("Fields Aff."). In particular, Perez requested discovery of an incident in which Masood Akbar, a Pakistani man, was allegedly forced to touch the crotch of Brian Bellows, a ConEd employee.
On October 7, 2003, Perez wrote to Judge Maas requesting an order requiring ConEd to produce "all of the documents that pertain to the investigation of Masood Akbar's complaint of sexual harassment against Mr. Brian Bellows." 10/7/03 Letter from Steven T. Mitchell, counsel to Perez, to Hon. Frank Maas, Ex. C to the Fields Aff. In an endorsement on Perez's letter, Judge Maas denied that request, holding that "[t]he documents underlying this alleged sexual harassment claim are not materials that I previously directed ConEd to disclose. If ConEd has turned over the employee's EEO complaint, nothing further is required."Id. (emphasis in original).
In a telephone conference on October 9, 2003, Perez renewed his request for all material pertaining to the investigation of Akbar's sexual harassment claim. Judge Maas again denied the request, specifically agreeing with ConEd that Akbar's sexual harassment claim is not sufficiently related to Perez's racial discrimination claim to warrant production of ConEd's entire investigative file. See 10/9/03 Transcript at 22, Ex. A to the Fields Aff.
Moreover, Judge Maas specifically rejected Perez's argument that the way that ConEd handled Akbar's complaint is relevant to Perez's claims merely because Akbar is a racial minority. "[I]f the logic of [Perez's] request were applicable then . . . [Perez] really ought to be permitted to audit all of the books and records of the EEO office because they're all relevant to [his] claim that minorities are treated differently by the EEO office than non-minorities." Id. at 22-23.
On October 19, 2003, Perez timely objected to these rulings.
ConEd argues that Perez's objections are untimely, counting ten days from Judge Maas' September 11, 2003, ruling. See Fed.R.Civ.P. 72(a) ("Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made."). However, the September 11 Order merely required ConEd to produce complaints of discrimination; it did not specifically refuse to order production of documents underlying those complaints. Judge Maas did not rule on that issue — and on the Akbar files in particular — until October 7. Perez's October 19 objections were made within ten days of that order, pursuant to the terms of Rule 6. See Fed.R.Civ.P. 6(a).
II. LEGAL STANDARD
When considering objections to a magistrate judge's ruling on a nondispositive matter, a district judge must "modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). See also 28 U.S.C. § 636(b)(1)(A) ("A judge of the court may reconsider any [nondispositive] pretrial matter . . . [where] the magistrate's order is clearly erroneous or contrary to law."). Matters involving pretrial discovery are generally considered "nondispositive of the litigation" and thus are subject to the "clearly erroneous or contrary to law standard." Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990) (citation omitted). An order is "clearly erroneous" only when "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Thompson v. Keane, No. 95 Civ. 2442, 1996 WL 229887, at *1 (S.D.N.Y. May 6, 1996) (citations omitted).
A party seeking to overturn a magistrate's discovery order therefore bears a heavy burden. See Corn-Tech Assocs. v. Computer Assoc. Int'l, 753 F. Supp. 1078, 1079 (E.D.N.Y.), aff'd, 938 F.2d 1574 (2d Cir. 1991). "Pursuant to this highly deferential standard of review, magistrates are afforded broad discretion in resolving discovery disputes and reversal is appropriate only if their discretion is abused." Universal Acupuncture Pain Serv., P.C. v. State Farm Mutual Auto. Ins. Co., No. 01 Civ. 7677, 2002 WL 31296317, at *1 (S.D.N.Y. Oct. 10, 2002) (citing Lanzo v. City of New York, No. 96 Civ. 3242, 1999 WL 1007346, at *1 (E.D.N.Y. Sept. 21, 1999)).
III. DISCUSSION
Perez does not specifically argue that Judge Maas' order was "clearly erroneous" or "contrary to law" or that he abused his discretion. Rather, Perez "does not agree [with Judge Maas' conclusion that the Akbar investigation is irrelevant to Perez's claims] and contends that the shocking behavior that Mr. Akbar was subjected to not only had sexual harassment overtones it also had discrimination because of color implications. The incident described was humiliating and the humiliation was directed to a person of color. . . ." 10/19/03 Letter from Stephen T. Mitchell to the Court ("10/19/03 Ltr.").
As Judge Maas rightly noted, the implication of this argument is thatany complaint — and every document in the accompanying investigative file — made by a minority is relevant to claims of racial discrimination, regardless of whether those complaints have anything to do with race. Because I do not accept this premise, I cannot find fault with Judge Maas' holding that the requested discovery is irrelevant to Perez's claims and to the subject matter of the litigation, namely racial discrimination. See Fed.R.Civ.P. 26(b)(1) (requiring a showing of "good cause" in order to obtain "discovery of any matter relevant to the subject matter involved in the action").
Here, Judge Maas has already ordered ConEd to provide Perez with Akbar's complaint. Perez has been unable to point to anything in that complaint (or elsewhere) to indicate that the incident it describes was connected to a hostile work environment for racial minorities, other than the fact that Mr. Akbar is himself a minority. Perez does argue that William Wallace — a defendant here — warned Akbar that "if you report my friend [Brian Bellows] to the EEO I'm going to make sure he comes back and bites you on the ass." 10/19/03 Ltr. Even assuming that this threat was actually made, it does not suggest any connection between Akbar's complaint and claims of racial discrimination. First, even though Akbar did file a complaint, Perez has pointed to no evidence of retaliation. So, at best, it was an empty threat. Second, the threat has nothing to do with race. Rather, Wallace was looking out for an admitted friend.
Akbar apparently testified to Wallace's threat, see 10/19/03 Ltr., although Perez did not attach the relevant deposition pages to his motion and, in fact, informs the court that Akbar's deposition has not yet been transcribed. Nonetheless, for purposes of this motion, I accept Perez's account of Akbar's testimony.
That being so, Perez has offered no connection between Akbar's complaint and Perez's claims besides the fact that both individuals are racial minorities. This is not enough; Judge Maas was on firm ground in denying the discovery request.
IV. CONCLUSION
For the foregoing reasons, the motion is denied and Judge Maas' order is affirmed. The Clerk is directed to close this motion.
SO ORDERED.