White v. County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SAMUEL WHITE,

Plaintiff,

MEMORANDUM

AND ORDER

-against- 20-CV-1501 (RER)(JMW)

COUNTY OF SUFFOLK, SUFFOLK COUNTY

POLICE DEPARTMENT, RONALD TAVARES,

MICHAEL MILAU, SUFFOLK COUNTY DISTRICT

ATTORNEY'S OFFICE, DARRYL LEVY, LAURA

NEWCOMBE, THOMAS SPOTA, JOHN DOES

1-10, TIMOTHY SINI, OFFICE OF THE MEDICAL

EXAMINER CRIME LABORATORY (SUFFOLK

COUNTY), HELEN WONG, ODETTE R. HALL,

M.D., JOHN PETERSON and JAMES MCGUINESS,

Defendants.

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A P P E A R A N C E S:

Stephanie McClure, Esq.

Law Office of Stephanie McClure

101 Avenue of the Americas, 9th Floor

New York, NY 10013

Attorney for Plaintiff

Stacy A. Skorupa, Esq.

Suffolk County Department of Law

H. Lee Dennison Building

100 Veterans Memorial Highway

Hauppauge, NY 11788

Attorneys for All Defendants (except Thomas Spota)

Anthony M. LaPinta, Esq.

Kyle O.Wood, Esq.

Law Offices of Anthony M. La Pinta

200 Vanderbilt Motor Parkway

Suite C-17

Hauppauge, NY 11788

631-231-1199

Attorneys for Defendant Thomas Spota

WICKS, Magistrate Judge:

Something is rotten, but contrary to Marcellus’s suggestion to Horatio,

it’s not in Denmark. Rather, it’s in discovery in modern federal civil

litigation right here in the United States.1

Plaintiff Samuel White (“Plaintiff”) commenced this Section 1983 civil rights action

against Suffolk County, various other defendants (collectively, the “County Defendants”) and

former District Attorney Thomas Spota (collectively, “Defendants”) on March 21, 2020, seeking

monetary damages and non-monetary relief for alleged violations of due process and equal

protection, false arrest, malicious prosecution, denial of a fair trial, failure to intervene, denial of

right to counsel, fabrication of evidence, presentation of false evidence to the grand jury and an

appellate court, conspiracy, and failure to train or supervise. (See ECF No. 87.) In her March 31,

2023 Order granting in part and denying in part Defendants’ respective dismissal motions (ECF

No. 96, 97), District Judge Joanna Seybert returned this case to the undersigned to preside over

the discovery phase of this action. (See ECF No. 130.) In January 2024, this case was re-assigned

to District Judge Ramon E. Reyes, with the undersigned still presiding over discovery and

pretrial matters. (See Electronic Entry dated January 23, 2024.)

Plaintiff has embarked on a seemingly never-ending quest for three categories of

discovery documents and, as it turns out, the pursuit was not in the least Quixotic. Rather, the

conduct Plaintiff complains of here – where the County repeatedly and adamantly denied

possession of documents -- is reminiscent of the words uttered by Queen Gertrude in Hamlet,

namely, “the lady doth protest too much, methinks.” The three categories sought are: (i) certain

Internal Affairs files of non-defendant officers, as relating to Plaintiff’s claim under Monell v.

Dep’t of Soc.Servs. of City of N.Y., 436 U.S. 658, 707 (1978) (the “Monell discovery”); (ii)

1 Sec. Nat. Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 596 (N.D. Iowa 2014).

Internal Affairs files which pertain to any officer involved in the thirteen specifically identified

case files, identified earlier in discovery litigation – specifically, litigation documents including

electronic copies of any depositions, sworn statements, signed statements, answers to

interrogatories or responses to requests for admissions (the “Internal Affairs files”); and (iii)

any/all documents that pertain to the federal criminal case against Defendant Thomas Spota (the

“Spota Documents”). See ECF No. 149 at 4. On February 27, 2024, following a Status

Conference with the parties, the undersigned directed the County Defendants to “produce the

outstanding Monell discovery as it relates to the Federal Criminal investigation and case in which

Defendant Spota was a party (the “Outstanding Monell Discovery”),” and, in light of the County

Defendant’s admission on the record to being in possession of the Outstanding Monell

Discovery,2 further stated the Court would “consider an application for costs from Plaintiff's

Counsel for having to continue to pursue these materials.” (ECF No. 160.) Plaintiff filed his First

Motion for Sanctions on March 22, 2024 (ECF No. 171) and Second Motion for Sanctions on

April 10, 2024. (ECF No. 177.) Plaintiff additionally filed a “Ninth” Motion to Compel (ECF

No. 182) discovery previously ordered by this Court on February 27, 2024, and March 5, 2024,

arguing that Defendants’ production of said discovery was deficient. See ECF No. 160;

Electronic Order dated March 5, 2024.

Accordingly, the latest motions before the Court are Plaintiff’s: (i) First Motion for

Sanctions as against the County Defendants (ECF No. 171), (ii) Second Motion for Sanctions as

against the County Defendants (ECF No. 177), and (iii) “Ninth” Motion to Compel (ECF No.

2 The County Defendants previously represented that they were not in possession of these materials, and

were directed by the Court to provide Plaintiff with a sworn affidavit stating so. See ECF No. 90;

Electronic Order dated November 13, 2021. The Court notes that Counsel for Defendant Spota, unlike the

Counsel for the County Defendants, previously represented to the Court to being in possession of relevant

documents, but declined to disclose them on privilege grounds. See ECF No. 94.

182), all of which are opposed by Defendants (see ECF Nos. 185, 186). For the reasons that

follow, Plaintiff’s First Motion for Sanctions (ECF No. 171) is GRANTED in part and

DENIED in part, Plaintiff’s Second Motion for Sanctions (ECF No. 177) is GRANTED in part

and DENIED in part, and Plaintiff’s Ninth Motion to Compel (ECF No. 182) is GRANTED.

BACKGROUND

The Court assumes the parties’ familiarity with the factual and procedural background of

this case, as articulated in the undersigned’s Report and Recommendation (ECF No. 124),

District Judge Joanna Seybert’s Partial Adoption Order (ECF No. 130), District Judge Reyes’s

Order Granting County Defendants’ Motion for Protective Order (Electronic Order dated March

13, 2024), and the undersigned’s Order granting the Federal Bureau of Investigation’s (“FBI”)

Motion for Reconsideration (Electronic Order dated April 9, 2024). Thus, only the facts relevant

to Plaintiff’s Sanctions Motions and Motion to Compel are outlined below.

Plaintiff filed his First Motion to Compel on April 15, 2021 (ECF No. 69), seeking

Monell discovery, as well as records regarding the investigation of Mr. Spota, a surveillance

video of the subject incident, and an underlying criminal file of Plaintiff, which was granted in

part and denied in part. (ECF Nos. 69, 90.) As to the portion concerning the scope of Monell

discovery, this Court held:

Plaintiff’s motion to compel Monell-related discovery is granted in part as follows:

Plaintiff shall provide Defendants with a list articulating the specific types of case files

that are being sought, tailored to the claims being asserted in this case, on or before

November 19, 2021, and Defendants shall respond on or before December 20, 2021. To

the extent that Defendants do not have responsive documents, Defendants shall provide

an affidavit stating so. This includes the demands for Monell discovery pertaining to

Defendant Thomas Spota. As to Plaintiff’s request for Monell discovery pertaining to the

Keith Bush file and Martin Tankleff file, that is denied without prejudice, on the basis of

Rule 26’s prescription of proportionality.

(ECF No. 90.) Plaintiff filed a Second Motion to Compel discovery on December 31, 2021 (ECF

No. 98), requesting Internal Affairs files from 2002 through July 2019 for 11 specific categories:

Abuse of Authority, Biased Policing, Bribery/Official Misconduct, Civil Rights Violation-Other,

Excessive Force, Fail to Perform Duty, False Arrest, Illegal Search/Seizure, Improper

Supervision, Lying/False Statement, and Misconduct. (See ECF Nos. 105, 108, and 98.)

Defendants subsequently agreed to: (i) provide files for each of the named Defendants that relate

to the nature of the claims, regardless of outcome and substantiated findings; and (ii) provide

Internal Affairs files for nondefendant officers that relate to the nature of the claim dating back to

2008 (more than 10 years prior to the filing of the Complaint) – however, Defendants “disputed

whether Plaintiff [was] entitled to Monell discovery dating back to 2002 related to non-defendant

officers, and whether the Internal Affairs files for non-defendant officers shall include all files

whether substantiated or not.” (See ECF Nos. 107, 111.) This Court granted Plaintiff’s Second

Motion to Compel Monell discovery in part3, ordering Defendants to produce:

Named Defendants: the requested files that relate to the nature of the claim (i.e., the 11

specific categories Plaintiff identified), regardless of outcome and substantiated findings

for any allegation, for the entire career of each named Defendant (Defendants have

already agreed to provide such (See ECF No. 107)).

Non-Defendant Officers: Internal Affairs files that relate to the nature of the claim (i.e.,

the 11 specific categories Plaintiff identified), dating back to 2008 (Defendants have

already agreed to provide such (See ECF No. 107)). Records dating back to 2014 shall

include all records regardless of outcome and substantiated findings for any allegation.

(ECF No. 111.)

On November 19, 2023, Plaintiff filed his Third Motion to Compel (ECF No. 144),

seeking Monell discovery, Internal Affairs files, and Spota Documents. Plaintiff argued

Defendants did not produce five out of the eleven “categories” of Internal Affairs files –

3 The Court denied Plaintiff’s request for records dating back to 2002. (ECF No. 111.)

specifically documents relating to 1) Biased Policing; 2) Bribery and Official Misconduct; 3)

Civil Rights; 4) Illegal Search and Seizure; and 5) Lying / False Statement – and, Defendants’

production only included Internal Affairs files from 2014-2016, in violation of this Court’s Order

directing Defendants to provide all Internal Affairs files dating back to 2008. (See ECF Nos. 144,

111.) Plaintiff additionally argued Defendants’ production “should have included those Internal

Affairs files which pertain to any officer involved in the ‘thirteen specifically identified case

files’ identified earlier in discovery litigation.” (ECF No. 144.) With respect to these thirteen

cases, Plaintiff claimed that Defendants’ production was incomplete, and requested “litigation

documents, including electronic copies of any depositions, sworn statements, signed statements,

answers to interrogatories, or requests for admission” that are in “in the possession of any/all of

the County Attorneys’ clients.” (ECF No. 144 at 1-2.)

Plaintiff also challenged Defendants’ production of “any and all documents that pertain to

the federal criminal case against Mr. Spota.” (ECF No. 144.) This Court had previously ordered

former defense counsel to the County Defendants – Assistant County Attorney Brian Mitchell4 –

to provide the documents, and, specifically, to provide Plaintiff’s counsel with an Affidavit from

a person conducting a search for the documents and the result of it. (ECF Nos. 90, 100, 144.)5

4 Mr. Mitchell moved to withdraw as attorney for the County Defendants on December 30, 2022, in light

of his retirement, which was granted by the undersigned on January 4, 2023. (ECF No. 129; Electronic

Order dated January 4, 2023.) Assistant County Attorney Stacy A. Skorupa replaced Mr. Mitchell as

Counsel for the County Defendants. (Id.)

5 This Court issued the mentioned Orders as a result of Mr. Mitchell’s claims that “none of his clients had

any documents relating to that matter.” (ECF Nos. 90, 144-2.) Specifically, on November 9, 2021, the

undersigned directed Plaintiff “to provide Defendants with a list articulating the specific types of case

files that are being sought, tailored to the claims being asserted in this case, on or before November 19,

2021” and directed Defendants to respond on or before December 20, 2021. (ECF No. 90.) The

undersigned further directed: “To the extent that Defendants do not have responsive documents,

Defendants shall provide an affidavit stating so. This includes the demands for Monell discovery

pertaining to Defendant Thomas Spota.” (Id.) The undersigned denied “Plaintiff's request for records

pertaining to the federal investigation and prosecution of Defendant Thomas Spota” without prejudice,

noting that “Plaintiff ha[d] alternative routes to pursue such discovery in the face of Defendant’s

Plaintiff’s Counsel stated that Mr. Mitchell provided her an Affidavit, which she attached to her

Third Motion to Compel, from a person who searched for documents pertaining to the

“discipline, firing, or termination” of Thomas Spota. (ECF No. 144.) Specifically, Mr. Mitchell

provided Plaintiff’s Counsel with an Affidavit from Richard Weinschenk, Deputy General

Counsel of the Suffolk County District Attorney’s Office, who attested that: “[a] search was

conducted for responsive documents and the only records located that related to the inquiry were

emails. An inter-office communication, and a letter of resignation, which were located in Mr.

Spota’s personnel file. No other responsive documents were located.” (ECF No. 144-3.)

The undersigned declined to address the merits of Plaintiff’s Third Motion to Compel due

to the parties’ failure to meaningfully meet and confer prior to raising the discovery dispute with

the Court, and ultimately denied the Motion without prejudice and with leave to renew. (ECF

No. 49 at 18.)6 On January 26, 2024, Plaintiff filed a Fifth Motion to Compel (mislabeled as a

“Seventh” Motion), again seeking Monell discovery (contained on a “thumb drive”), Internal

Affairs files (contained on a “DVD/CD”), and Spota Documents, arguing that Defendants’

previous production of said documents was deficient. (ECF No. 151.) With respect to the

representation it does not have possession, custody or control of anything further to be produced.” (Id.)

(emphasis added). On November 12, 2021, Defendant Spota indicated via Letter to the Court that he was

in possession of materials related to the federal criminal case against him, but that he declined to produce

the material on privilege grounds. See ECF No. 94. On November 13, 2021, the undersigned directed

Plaintiff to “provide the County Defendants with a list articulating the documents sought pertaining to

Defendant Spota, tailored to the claims being asserted in this case, on or before November 19, 2021” and

further noted: “To the extent that County Defendants do not have responsive documents, Defendants shall

provide an affidavit stating so.” (See Electronic Order dated November 13, 2021.) Again, on January 25,

2022, the undersigned directed the County Defendants to “provide the outstanding affidavit pertaining to

Plaintiff's discovery requests related to Defendant Spota, on or before February 11, 2022.” (ECF No.

100.)

6 Plaintiff additionally filed a Fourth Motion to Compel on December 19, 2023, reiterating the same

discovery requests made in her Third Motion to Compel. (ECF No. 148.) The undersigned denied

Plaintiff’s Fourth Motion as moot in light of its December 19, 2023 Order, without prejudice and with

leave to renew. (ECF No. 149; Electronic Order dated December 19, 2023.)

outstanding Monell discovery as it relates to the Federal Criminal investigation and case in which

Mr. Spota was a party, along with several other SCPD Officers, Plaintiff argued that the

deposition of Alexander Crawford of the Suffolk County Internal Affairs Department (the

“Crawford Deposition”) revealed that the County did fact have material relevant to that federal

criminal case and investigation as early as January 2020, despite previous representations from

the County to both Plaintiff’s Counsel and the Court that they were not in possession of these

documents. (See ECF Nos. 115, 151.)7

On February 27, 2024, at a Status Conference with the parties, the Court addressed

Plaintiff’s “Seventh” Motion to Compel (ECF No. 151). After the undersigned confronted

Counsel for the County Defendants with the Crawford Deposition, the County Defendants

admitted on record to being in possession of discovery relating to the Federal Criminal

investigation and case in which Defendant Spota was a party, which the undersigned deemed as

part of the “Outstanding Monell Discovery.” (ECF No. 160.) The undersigned subsequently

granted Plaintiff’s “Seventh” Motion to Compel (ECF No. 151) as follows:

Counsel for the County of Suffolk Defendants is directed to: (i) serve on Plaintiff's

Counsel and file on ECF an updated thumb drive, along with a comprehensive index of

its contents, on or before March 4, 2024; (ii) hand deliver the DVDs to Plaintiff's Counsel

and file an Affidavit of Service on ECF on or before March 22, 2024; (iii) produce the

outstanding Monell discovery as it relates to the Federal Criminal investigation and case

7 On February 22, 2022, this Court ordered “the deposition of the County to take place on the issues of

search, review and production of Internal Affairs records, namely the 11 categories Plaintiff has identified

as directly relating to his claims in this matter, and the County’s ‘Concise Officer History’

database/documents.” (ECF No. 106.) Specifically, the Court directed Plaintiff to “serve a Rule 30(b)(6)

notice for the deposition at which the County will produce Mr. Alexander Crawford. The notice shall

specify the categories of inquiry. Mr. Crawford's deposition shall be completed on or before 4/15/2022.”

(Id.) Plaintiff’s Counsel took Mr. Crawford’s deposition on May 2, 2022. (ECF No. 115.) Mr. Crawford

testified that the County was in possession of documents related to the federal criminal investigation of

Mr. Spota as early as January 2020: “[T]here was a request from Commissioner Hart that was made to the

FBI for whatever documentation they could share and, yes, there was some documentation that was

provided to the police department.” (See Crawford Deposition Transcript, ECF No. 115 at 221.)

in which Defendant Spota was a party (the “Outstanding Monell Discovery”) on or before

March 4, 2024.

In light of the County of Suffolk Defendants’ admission regarding the Outstanding

Monell Discovery, the Court will consider an application for costs from Plaintiff's

Counsel for having to continue to pursue these materials. On or before March 20, 2024,

the parties are directed to file a Joint Status Report advising the Court if the thumb drive

issue raised by Plaintiff's Counsel at ECF No. 151 (the “Thumb Drive Dispute”) has been

resolved. If any disagreements remain over the contents of the thumb drive, the parties

are directed to appear, with the thumb drive and personal computers, for an in-person

Status Conference scheduled for March 26, 2024, at 1:30 PM at the United States District

Court, Eastern District of New York, 100 Federal Plaza, Courtroom 1020, Central Islip,

New York. If the Thumb Drive Dispute is reported as resolved, the March 26 Status

Conference will be cancelled.

(ECF No. 160.) On February 29, 2024, the County Defendants moved for an extension of time to

complete discovery in compliance with the undersigned’s February 27, 2024 Order. (ECF No.

161). The undersigned denied the County Defendants’ Motion with prejudice and without leave

to renew,8 and directed the County Defendants:

[T]o serve on Plaintiff's Counsel and file on ECF an updated thumb drive, along with a

comprehensive index of its contents, on or before March 11, 2024; hand deliver the

DVDs to Plaintiff's Counsel and file an Affidavit of Service on ECF on or before March

22, 2024; [and] produce the outstanding Monell discovery as it relates to the Federal

Criminal investigation and case in which Defendant Spota was a party, including any files

the County Defendants received from the FBI (the “Outstanding Monell Discovery”) on

or before March 11, 2024.

(Electronic Order dated March 5, 2024) (hereafter, the “March 5, 2024 Order”) (emphasis

added). The undersigned further warned: “[f]ailure to comply with this Court’s Order may result

in sanctions against the County Defendants under Rule 37(b).” (Id.)

8 The County Defendants’ request was premised on the fact that there was a Renewed Motion for a

Protective Order pending before this Court at ECF No 157. (ECF No. 161.) However, as the undersigned

noted: “the County Defendants ha[d] not adequately explained why production of the documents outlined

in this Court's February 27, 2024 Order should be delayed until such time as the Court render[ed] its

decision on the renewed Motion for Protective Order at ECF No. 157.” (Electronic Order dated March 5,

2024.) The County Defendants made a second application to Judge Reyes (ECF No. 164), who extended

the March 11, 2024 production deadlines set by the March 5, 2024 Order to March 18, 2024. (See

Electronic Order dated March 8, 2024.)

On March 8, 2024, the FBI—not a party to this case— filed a Motion for Reconsideration

(ECF No. 163), asking this Court to partially reconsider and modify its March 5, 2024 Order

denying County Defendants’ Motion for Extension of Time to Complete Discovery. The U.S.

Attorney’s Office for the Eastern District of New York (“USAO”) supplemented the FBI’s

Motion for Reconsideration, specifically requesting that this Court prohibit disclosure of FBI

“FD-302” Reports (hereinafter “FBI Reports”)9 related to a prior federal criminal investigation

of Defendant Spota. (See ECF No. 168). The FBI reasoned that County Defendants were not

“authorized to retain or produce” any FBI documents. (ECF No. 163 at 2). As of the time of its

letter motion, the FBI stated that it was “investigating the circumstances under which the County

Defendants came to possess the material in question.” (Id. at 2). According to the FBI, pursuant

to the Supreme Court’s decision in U.S. ex rel. Touhy v. Ragen (“Touhy”), not only could the

Department of Justice (“DOJ”) bar its employees from disseminating materials pursuant to DOJ

regulations, but the County Defendants were also prohibited from producing to Plaintiff any FBI

or DOJ documents pertaining to Defendant Spota’s federal criminal investigation. (See id. at 2-3;

see also U.S. ex rel. Touhy v. Ragen, 340 U.S. 462, 467–68 (1951)). For the reasons stated in its

Memorandum Order, the Court granted the FBI’s Motion for Reconsideration, and provided that

“The County Defendants [were] no longer obligated to produce the FBI Reports in accordance

with this Court’s March 5 Order.” (ECF No. 175.)10

9 FBI agents generally use “302s to memorialize interviews ‘[w]hen it is anticipated that the results of an

interview may become the subject of court testimony.’” Am. Oversight v. United States Dep't of Just., 45

F.4th 579, 585 (2d Cir. 2022) (quoting FBI, Domestic Investigations and Operations Guide § 18-33 (Mar.

3, 2016)). As indicated by the USAO’s supplementary filing, the FBI sought to prevent disclosure of

approximately forty (40) FBI Reports. (See ECF No. 168.)

10 The undersigned noted that “[f]ollowing review of the parties’ Joint Status Report, due by April 10,

2024 (see Electronic Order dated April 2, 2024), the undersigned will set dates for production of all

outstanding discovery.” (Id.) On April 10, 2024, the parties reported that the discovery dispute raised by

Plaintiff at ECF No. 174 had not been resolved after a Court-ordered “meet and confer” (see Electronic

On March 22, 2024, Plaintiff filed his First Motion for Sanctions pursuant to Fed. R. Civ.

P. 37 against the County Defendants, seeking attorney’s fees “incurred specifically in

conjunction with efforts and litigation undertaken to obtain certain Monnell and ‘Spota-related’

discovery.” (ECF Nos. 171, 171-1 at 3.) Plaintiff contends “Federal Rule of Civil Procedure 37

makes clear that where motions to compel are litigated, the prevailing party may be permitted to

recover expenses including attorney fees[,]” and that the requested attorney’s fees are reasonable

here. (ECF No. 171-1 at 5.) First, Plaintiff argues the “time and labor” spent by Plaintiff’s

Counsel in efforts to obtain these materials “has been extraordinary.” (Id. at 6.) Plaintiff claims

the County Defendants have “delayed for years since the original discovery order from May of

2021, ordering the discovery of the material in question. The list of relevant billing shows the

efforts necessitated due to the unrelenting refusals by the [C]ounty to acknowledge possession of

certain Spota-related material, turn-over material related to other litigations, and an obvious

reluctance to discover certain I.A. [(i.e., “Internal Affairs”)] material[,]” as evidenced by the

Crawford Deposition and at the February 27, 2024 Status Conference before the undersigned.

(Id.)

Second, Plaintiff argues Counsel’s fee of $750 per hour is reasonable, and that the “hours

reflected” in Plaintiff’s Counsel’s billing records “reflect the attorney time that was necessary to

litigate this very specific discovery issue, which, by virtue of the fact that the discovery still

has not been made, is indicative of the extents to which litigation has been (and may

continue to be) necessary.” (Id. at 8.) Specifically, Plaintiff argues the attorney’s fees sought are

reasonable because: (i) Plaintiff’s Counsel’s “particular skill set as a former member of law

Order dated April 2, 2024), and the undersigned set a briefing schedule for Plaintiff’s “renewed ‘Eighth’

Motion to Compel.” (See Electronic Order dated April 11, 2024.)

enforcement and homicide prosecutor, specifically having an understanding of the inner

workings and duties of any prosecuting agency, police department, and Internal Affairs

bureau, as well as the particular software used by Suffolk County, have been instrumental in the

pursuit of the discovery in this matter[,]” (ii) the acceptance of any long-term contingency case

at the Federal level can preclude a solo attorney from accepting other cases or employment, (iii)

$750/hour is Plaintiff’s Counsel’s standard hourly rate, (iv) the fee is contingent, and (v)

Plaintiff’s Counsel’s background in law enforcement “has proven to be supremely important in

navigating discovery in this case; not only toward what has been discovered, but critically, what

has been withheld.” (Id. at 8-9) (emphasis in original). Plaintiff ultimately seeks $101,525.00 in

attorney’s fees, and has submitted billing records dated from June 21, 2020 to March 14, 2024.

(ECF No. 171-2 at 1-16.) The scope of the billing records submitted are all entries “Relating to

certain Monell/I.A./Spota Discovery.” (Id. at 1.)

On April 1, 2024, Plaintiff filed a Sixth Motion to Compel (mislabeled as an “Eighth”

Motion), claiming that the County Defendants’ production of the DVD containing Internal

Affairs files was deficient. (ECF No. 174.) Plaintiff contended that “disclosure was to include

transcripts and sworn statements from 13 cases (unless published on PACER)” and that the

County Defendants’ “disclosure only includ[ed] files that were in the possession of the County

Attorney’s office, as a result of the County Attorney’s having litigated the matters.” (Id. at 2.)11

Plaintiff specifically identified that the “deposition transcript of a critical eyewitness, Risco

Mention-Lewis, was missing from disclosure.” (Id.) The undersigned denied Plaintiff’s “Eighth”

Motion to Compel without prejudice and with leave to renew, on the grounds that Plaintiff's

11 Plaintiff claimed that the “The County Attorney acknowledged that claims and documents existed from

the identified state court matters and federal filings, but it indicated that ‘the County Attorney does not

handle those claims and are not in possession of any documents relating to (it).’” (Id.)

Motion failed to include a certification that the parties met and conferred in an attempt to resolve

the issues without judicial intervention, and directed the parties to meet and confer and file a

status report by April 10, 2024 advising if the discovery dispute had been resolved. (See

Electronic Order dated April 2, 2024.)

Plaintiff filed his Second Motion for Sanctions on April 10, 2024, seeking a default

judgment against the County Defendants “for their willful and unrelenting disregard of discovery

orders.” (ECF No. 177.) Plaintiff contends that “Federal Rule of Civil Procedure 16 permits the

imposition of sanctions-including those authorized by Rule 37(b)(2)(A)(ii)-(vii)- when a party

fails to obey a discovery order. Sanctions include striking a pleading and rendering a default

judgment against a disobedient party showing willfulness, bad faith or fault.” (Id. at 1) (citing

Fed. R. Civ. P. 37(b)(2)(A)(iii),(vi)). Plaintiff argues the County Defendants’ “repeated

noncompliance with Court orders is willful” such that default judgment as against them is

warranted. (Id. at 2.) First, with respect to the Spota Documents, Plaintiff contends:

For years, the [C]ounty [D]efendants vehemently denied that any defendant had any

document pertaining to the Spota case or investigation. In 2021, [the Court] ordered that,

if no such documents were available, someone who made a reasonable search must

produce an affidavit stating so. The duty was ignored, resulting in a second Order being

issued. Thereafter, the [C]ounty produced a half-hearted affidavit stating a

search for documents was performed relating to Spota’s hiring, firing, or discipline (only)

which clearly evaded the discovery question. Thereafter, [the Court] ordered the

deposition of Alexander Crawford. It was at that deposition that Crawford testified he had

been in possession of documents relating to Spota since January of 2020.

After two years of denying his clients had any documents relating to defendant Spota,

Brian Mitchell finally acknowledged Crawford’s testimony and waived privilege over

those documents, in writing.12 In no uncertain terms, Mitchell advised he would be

12 Plaintiff is referencing email correspondence between Plaintiff’s Counsel and Mr. Mitchell, dated May

13, 2022, in which Mr. Mitchell stated: “I have been informed by Internal Affairs that the investigation of

Christopher Loeb complaint is not yet completed. As expected, the documents provided to the Suffolk

IAB [(i.e., the “Internal Affairs Bureau”)] from the U.S. Attorney’s Office were provided with the caveat

that they not be disseminated. That being said, apparently the documents have either been released by the

U.S. Attorney to other sources, or have appeared in various media. So we will not have any objection to

providing you whatever relevant documents that exist with that file.” (ECF No. 177-1 at 1.) As this Court

disclosing the FBI documents and reports. In addition to the email to [Plaintiff’s

Counsel], reference was made to these documents and the fact that the [C]ounty had no

objection to disclosing them in a Status Report filed shortly after the Crawford deposition

in May 2022.13 No privilege log was ever proffered by the County – as privilege was not

their contention.

That position was fleeting. [Mr.] Mitchell soon thereafter refused to provide the material,

or any of the outstanding material, despite [the Court’s] Orders to the contrary and [the

Court’s] issuance of a [C]onfidentiality [O]rder.14 Still, no privilege log was ever made,

and instead, the [C]ounty began taking the position that it was in full compliance with all

discovery orders, that nothing was due and owing, and it had nothing to discover in

regard to Spota. In fact, the [C]ounty sought a ruling from [the Court] to actually bar

[Plaintiff’s Counsel] from continuing to request Spota-related discovery because it had

‘nothing’ to discover.15

has previously ruled, Mr. Mitchell’s correspondence to Plaintiff’s Counsel did not waive privilege under

Touhy. See ECF No. 175.

13 In a May 16, 2022 Joint Status Report addressed to the undersigned, Mr. Mitchell stated: “The

investigation into the events underlying the conduct engage in by former [Suffolk Police] Chief James

Burke (and a number of other Suffolk Police Officers) has not yet been completed. I have confirmed,

however, that certain documents were provided to the Internal Affairs Bureau from the United States

Attorney and/or the FBI relating to its investigation of former Chief Burke, which ultimately resulted in a

further investigation and prosecution of Mr. Spota. Even though the Internal Affairs investigation itself is

not yet completed, we do not object to providing documents relating to the Internal Affairs investigation,

including any internal correspondence, statements, or Federal 302 memorandum.” (ECF No. 118.)

14 The Confidentiality Order at ECF No. 141 (hereafter, the “Confidentiality Order”) was reinstated by

Judge Reyes on March 13, 2024. (See Electronic Order dated March 13, 2024.) In his Order, Judge Reyes

noted that “Defendants’ deadline to produce the unredacted IAB and Spota documents will be extended to

a date to be set by Judge Wicks after consideration of the pending motion of the United States [at ECF

No.] 163.” (Id.) The Confidentiality Order defines certain documents as “confidential” in this matter

including, inter alia, Internal Affairs Reports. See ECF No. 141 at ¶ 2(b) (emphasis added) (“Confidential

document is defined to mean Suffolk County Police Department personnel files, Internal Affairs Reports,

Autopsy Report of Edwin Rivera, Jr., Medical Records of the plaintiff Samuel White, and any materials in

possession of the County defendants received from the U.S. Attorney’s Office related to defendant Spota

that are not otherwise available to the public.”).

15 In response to Plaintiff’s “Seventh” Motion to Compel, on February 5, 2024, Ms. Skorupa stated: “It is

Defendants’ continuing position that we are fully compliant with the Court’s prior Orders on [the] issue

[of Plaintiff’s request pertaining to the Spota Documents]. [Plaintiff’s Counsel] was previously advised to

contact the U.S. Attorney’s Office for the documents she seeks as they are the agency who investigated

and prosecuted Mr. Spota and thus are in possession of these documents. Instead, days prior to the close

of fact discovery in November[,] [Plaintiff’s Counsel] first took the position in her first motion on this

issue that an affidavit provided to her regarding these purported documents almost two years prior in

February 2022 by my predecessor was insufficient. Defendants note the Court’s prior warnings that

December 1, 2023 was the final deadline for fact discovery—a date that now passed more than two

months ago. We respectfully request that the Court enforce that deadline and deny this motion and any

further colloquy on this issue.” (ECF No. 155.)

(Id.) (emphasis in original). Plaintiff maintains that for years, the County Defendants

“intentionally withheld” Spota Documents, and their actions “prejudiced the course of this

case[,]” as Thomas Spota is a “named defendant and former policy-maker[,]” and “[d]ocuments

relating to the investigation and criminal case against him are critical” to Plaintiff’s case. (Id. at

3.)

Second, with respect to the Internal Affairs files contained on a “DVD/CD,” Plaintiff

argues that the County Defendants continuously failed to produce it, and falsely claimed that it

was “lost in the mail.” (Id.) Plaintiff maintains Counsel for the County Defendants admitted at

the February 27, 2024 Status Conference before the undersigned that she was not in possession

of the DVD, to which the undersigned ordered production and hand-delivery of the DVD to

Plaintiff’s Counsel the following week. (Id.) Plaintiff claims that he received the DVD by hand

delivery on March 12, 2024, however, production was again deficient. (Id.) Specifically, Plaintiff

contends the DVD, which was supposed to include “all transcripts from the Thomas Moroughan

case” is missing the deposition transcript of Risco Lewis, whose testimony was “critical” in the

Moroughan case. (Id.)

Third, with respect to the Monell discovery contained on a “thumb drive,” Plaintiff

argues that pursuant to this Court’s order, disclosure was to include Internal Affairs (“I.A.”)

records from 11 specific categories, from 2014 through 2019, regardless of the outcome of the

investigation, and from 2008-2014 for substantiated cases. (Id. at 4-5.) Plaintiff maintains

Counsel for the County Defendants “argued vehemently on multiple occasions before [the

undersigned] that a previously disclosed ‘thumb drive’ containing only 216 files was ‘complete’”

but, production was actually deficient, “forc[ing]” Plaintiff’s Counsel to “continually move to

compel the outstanding material.” (Id. at 5.) Plaintiff argues the pattern of deficiencies was

“willful[:]”

A 2021 letter from [Mr.] Mitchell provided certain statistical information regarding the

number of I.A. files in certain categories. In that letter, Mitchell advised that the category

of False Arrest, alone, from the discoverable time period had over 1,000 files.

Notwithstanding whether or not that figure is accurate, a thumb drive containing a mere

216 files was obviously deficient and should have been addressed years ago, ago, rather

than wasting years taking the inexplicable stance that it was complete.

(Id.) Plaintiff maintains that it was only upon the undersigned’s confrontation of the County

Defendant’s Counsel at the February 27, 2024 Status Conference that the deficiency of the

thumb drive production was finally acknowledged. (Id.)

Plaintiff additionally argues that the duration of the County Defendants’ noncompliance

weighs in favor of severe sanctions, as the “history of non-compliance dates back to 2021.” (Id.)

Plaintiff contends: (i) the County Defendants “willfully disobeyed discovery orders and acted in

cavalier disregard for their Duty of Candor and their discovery obligations, even after warnings”

by the Court that failure to comply with Court orders could result in discovery sanctions, and (ii)

that “[less] harsh sanctions would prove fruitless at this stage16 and prejudice has already

ensued.” (Id. at 6.) Ultimately, Plaintiff requests default be entered upon the docket against the

County Defendants, “with the amount of damages remaining the only issue to be determined by a

fact finder.” (Id.)

On April 17, 2024, Plaintiff filed his Seventh Motion to Compel (mislabeled as a “Ninth”

Motion). (ECF No. 182.) First, Plaintiff claims the County Defendants’ production of the

16 Plaintiff argues that any lesser sanctions would be ineffective given the County Defendant’s “brazen

disregard” for Court Orders and “strategic motion practice” including “a pattern of last minute filings”

requesting “ipso facto ‘stays’” and “frivolous delay tactics.” (Id. at 5.) Plaintiff is referencing multiple

requests by the County Defendants to stay production of discovery previously ordered by the undersigned

on February 27, 2024, and March 5, 2024, as well as the County Defendants’ requests for extensions of

time to respond to Plaintiff’s First Motion for Sanctions. See e.g., ECF Nos. 161, 164, 172, 176.

Internal Affairs files contained on a “DVD” produced to Plaintiff on March 12, 2024 is

“obviously and willfully deficient.” (Id. at 1.) Plaintiff argues that “[a]t a minimum, the DVD

was supposed to include transcripts, (not published on PACER), of any testimony and any sworn

statements, from the 13 cases” – notably, the Thomas Moroughan case. (Id.) Plaintiff claims the

deposition testimony of Riscoe Mention-Lewis, a critical eyewitness in the Moroughan cases,

was intentionally withheld from the County Defendants’ DVD production. (Id. at 2.) Plaintiff

claims several other items are also missing from the DVD, which were cited to in the Moroughan

case: (i) the deposition of Investigator Palumbo of the District Attorney’s Office; (ii) the

deposition of Assistant District Attorney Pearl; (iii) the deposition testimony of Dr. Kraszewski;

and (iv) the deposition of Jillian Bienz. (Id.) Plaintiff maintains these depositions “were critical

in [the Moroughan case] and are important to this [P]laintiff’s case.” (Id.) Additionally, Plaintiff

claims the DVD is missing the 50-h deposition of Rodolfo Taylor, “another one of the 13.” (Id.)

Second, Plaintiff argues the County Defendants’ production of Monell discovery,

contained on a “thumb drive,” was also deficient. (Id. at 3.) Plaintiff argues this disclosure was

“supposed to include 11 full categories of I.A. files, deemed relevant to this matter, over a

particular time span” and that, “according to known statistics, one particular category, False

Arrest, alone, should have had over 1,000 files alone.” (Id.) Plaintiff claims the discovery was

“ordered years ago” and “has still not been received to date.” (Id.) Overall, Plaintiff seeks a two-

part Order: (i) compelling the County Defendants to “disclose all material relating in any way to

the 13 specifically identified disputes, including but not limited to any testimony and sworn

statements and transcripts that [the Court] ordered several years ago[;]” and (ii) compelling the

County Defendants to disclose the Monell discovery contained on the “thumb drive” of the 11

categories, “along with its publication on PACER and index, consistent with [this Court’s]

February 27, 2024 Order.” (Id.)

On April 25, 2024, Defendants filed their Response in Opposition to Plaintiff’s First and

Second Motion for Sanctions. (ECF No. 185.) With respect to Plaintiff’s First Motion to Compel

seeking attorney’s fees, Defendants take the position that Plaintiff’s “Seventh” Motion to

Compel was “granted in part and denied in part based on the outcome of the FBI’s Motion for

Reconsideration” and therefore “Plaintiff’s [First] M]otion [for Sanctions] is governed by Rule

37(a)(5)(C) as opposed to Rule 37(a)(5)(A)[,]” which provides, “in pertinent part, that ‘[i]f the

motion [to compel] is granted in part and denied in part, the court…may, after giving an

opportunity to be heard, apportion the reasonable expenses for the motion.” (Id. at 2) (citing Fed.

R. Civ. P. 37(a) (5)(C)). Defendants further take the position that “Plaintiff’s application for

costs and attorneys’ fees should be denied outright as Plaintiff’s motion to compel [the

“Outstanding Monell Discovery”] was denied vis-à-vis the Court’s decision on the FBI’s Motion

for Reconsideration.” (Id.) However, Defendants argue that “[s]hould the Court entertain

Plaintiff’s motion to compel for materials beyond the referenced outstanding Monell discovery as

to Spota,” Defendants respectfully contend that ‘the Court find it appropriate for each side to

bear its own expenses regarding the completion and filing of the instant motion.’” (Id. at 3)

(quoting Ganci v. U.S. Limousine Serv., Ltd., No. CV 10-3027, 2012 WL 13109965, at *2-3

(E.D.N.Y. Sept. 28, 2012)).

Defendants further argue that “[s]hould the Court deem it appropriate to award any

amount of costs and attorneys’ fees in this matter pertaining to Plaintiff’s “Seventh” Motion for

Discovery and the outcome of same, the fees and costs sought are far beyond that which are

reasonable.” (Id.) First, Defendants argue that “any costs and attorney’s fees associated with

Plaintiff’s motion to compel discovery of the Outstanding Monell Discovery (the Spota

documents) must be denied as said motion ultimately was not successful.” (Id.) Defendants

contend that, at best, Plaintiff is only entitled to 2/3 of the costs and fees in making the motion as

1/3 of the motion was ultimately decided against him:

[A]ny fees or costs sought up to the point of the [“Seventh”] [M]otion to [C]ompel which

was filed on January 26, 2024 [(ECF No. 151)] are improper and premature at this stage

of the proceedings. [I]n assessing the fees and costs Plaintiff’s Counsel lists at [ECF No.]

171-2, all such fees and costs up to the point of her drafting and filing [ECF No.] 151 are

not appropriate in this application (all fees from pages 1 of 16 to page 13 of 16 starting

with the entry of 1/25/24). Plaintiff has not won his case at this point, necessitating a

costs and fees application for all work done in any fashion on these issues for Plaintiff’s

Counsel under 42 U.S.C. §1988. This application and the appropriateness of it in the form

of a discovery sanction under Rule 37 pertains solely to whether the Court opts to award

attorney’s fees and costs as it ‘may, after giving an opportunity to be heard, apportion the

reasonable expenses for the motion’ as Plaintiff’s motion to compel was, in fact, granted

in part and denied in part.

[T]he only entries in Plaintiff’s Counsel’s entire 16-page invoice at [ECF No.] 171-2 that

potentially pertain to ‘expenses for the [M]otion’ to [C]ompel are those found at the

following dates: 1/2/24, 1/25/24, 2/5/24 and 2/27/24 (the date the Court held a conference

and rendered its decision on Plaintiff’s Seventh Motion for Discovery). Anything prior to

that does not constitute “expenses for the motion.” In fact, Plaintiff’s Counsel’s prior

motion on these very issues was denied due to her failure to meet and confer as required

by the Court, which has been the reason that the vast portion of her discovery motions in

this matter have been denied since the case’s inception. Any work Plaintiff’s Counsel

attempts to attribute to this [M]otion to [C]ompel beyond 2/27/24 relates to other issues

regarding discovery, including the FBI’s Motion for Reconsideration, as the motion to

compel had already been decided. Further, as stated above, the FBI’s Motion for

Reconsideration resulted in the Court’s reversal of its prior decision on the discovery of

the Outstanding Monell Discovery regarding the Spota investigation and trial—a motion

Plaintiff lost in the end. Plaintiff certainly cannot recover the costs and attorney’s fees

associated with this unsuccessful portion of his motion.

Adding up the time Plaintiff’s Counsel alleges she spent on the four dates referenced,

they add up to a total of 5.1 hours which is a far cry from the 135.5 hours for which she

seeks reimbursement of fees and costs based on the aforementioned [M]otion to

[C]ompel.

(Id. at 3-4) (citing Fed. R. Civ. P. 37(a)(5)(C)). Defendants argue that “given the Court’s

authority under Rule 37(a)(5)(C) to apportion the reasonable expenses for the motion when a

motion to compel is granted in part and denied in part, the 5.1 hours for which [Plaintiff’s

Counsel] may argue she spent to make the motion is offset by the time the undersigned spent to

oppose it, succeeding in part.” (Id. at 4.) Defendants request the Court find it appropriate, given

the “mixed results” of Plaintiff’s “Seventh” Motion to Compel, for each side to bear their own

expenses of the Motion, and decline to impose Rule 37 sanctions. (Id.)

Defendants claim that if the Court were to “award Plaintiff for the 5.1 hours of work

potentially spent making the referenced [M]otion to [C]ompel, the amount of costs and fees

sought in [ECF No.] 171-2 ($101,625) are far from reasonable.” (Id) (“These fees are based on

an alleged 135.5 hours of work at an hourly rate of $750 per hour, which is beyond

unreasonable.”). Defendants maintain that “there are no unique circumstances that would justify

a departure from the prevailing market rates in this district” and it cannot be assumed that based

on Ms. McClure’s practice as a solo practitioner that she has the experience or expertise to

qualify as a ‘partner-level’ attorney to merit an hourly rate as one, particularly in the area of

§1983 complex civil rights litigation.” (Id. at 5-6.) Defendants argue that Plaintiff does not

provide authority from this District in which his Counsel was awarded $750 per hour as she

seeks here. (Id. at 6.) Overall, Defendants claim that Plaintiff’s Counsel’s hourly rate of $750 is

“unreasonable and higher than what courts in this District have approved and awarded,” and

“given her lack of experience in the area of §1983 litigation and her failure to provide facts to

support she is entitled to partner-level rates,” any award of fees “should be at no more than the

general rate of $200 to $325 an hour.” (Id.) Defendants maintain that Ms. McClure should be

awarded no more than $1,020.00 to $1,657.50 total for the time she spent making her “Seventh”

Motion to Compel. (Id.)

With respect to Plaintiff’s Second Motion for Sanctions, Defendants argue that Plaintiff

“improperly relies on Rule 16 which does not reference discovery orders” and “seeks the most

serious of sanctions in the form of striking Defendants’ Answers and entering default judgment

against them without any basis to do so at this juncture of the proceedings.” (Id. at 7.) While

Defendants acknowledge that Rule 37(b)(2) “may permit these sanctions for the most egregious

of violations,” Defendants maintain that Plaintiff has failed to show Defendants disregarded a

discovery order, willfully or in bad faith, to merit such a sanction. (Id.) Defendants claim that

there is no indication that Defense counsel has been intentionally withholding documents from

Plaintiff’s Counsel. (Id.) Specifically, Defendants advise that they produced the deposition

Risco Mention-Lewis at the request of Plaintiff’s counsel on April 9, 2024. (Id. at 8.) Defendants

further maintain that Ms. Skorupa, Mr. Mitchell, and Counsel for Defendant Spota “have tried

time and again to cooperate with [Plaintiff’s Counsel] in an effort to amicably resolve any

issues[,]” but claim that “[s]he has obstructed these efforts for years, filing motion after motion

without first meeting and conferring as required.” (Id. at 9.) Overall, Defendants claim that

Plaintiff’s Second Motion for Sanctions should be denied as baseless, and request the Court

impose sanctions on Plaintiff’s Counsel for filing it to the extent permissible under the Federal

Rules. (Id. at 9-10.)17

On April 26, 2024, the County Defendants filed their Response in Opposition to

Plaintiff’s “Ninth” Motion to Compel. (ECF No. 186.) Defendants advise that they have

provided Plaintiff’s Counsel with the deposition transcript of Risco Lewis and other responsive

Internal Affairs files (contained on the “DVD”), including IA files on the matters of Shawn

17 To the extent Defendants seek attorney’s fees associated with Plaintiff’s Second Motion for Sanctions,

they are directed to make a formal application to the Court in accordance with the undersigned’s

Individual Rules.

Lawrence, Messiah Booker, Thomas Moroughan and Aston Martin Barth, along with four

additional deposition transcripts from the Moroughan case (those of DA Investigator Anthony

Palumbo, ADA Raphael Pearl, Dr. Kraszewski and Jillian Bienz). (Id. at 2-3.) The County

Defendants maintain they are not in possession of any responsive documents regarding Eric

Williams, Rudolph Bisnauth, Mark Garret, Rodolfo Taylor, Gabriel Hubbard, Wilfredo Flores,

Dante Taylor, Nasheem Beck or James McArthur. (Id.)

Defendants further argue that with respect to the Internal Affairs files, Court-ordered

production was limited to “litigation documents, including electronic copies of any depositions,

sworn statements, signed statements, answers to interrogatories, or requests for admission” that

are “in the possession of any/ all of the County Attorneys’ clients” which pertain to any officer

involved in the ‘thirteen specifically identified case files’ identified earlier in discovery

litigation[,]” and “[t]he hearing minutes of a hearing conducted pursuant to General Municipal

Law §50-h and documents pertaining to Habeas Corpus (criminal) proceedings do not fall within

the confines of what the Court ordered Defendants to produce and these documents were thus not

disclosed.” (Id. at 4.)18 Defendants claim that they are not in possession of any documents related

to Habeas Corpus proceedings nor is the County Attorney’s Office, and nevertheless, “[t]he time

to expand the scope of discovery to include documents beyond those which the Court ordered

production of previously has long since passed.” (Id.) As to Plaintiff’s request to compel

production of the Monell discovery contained on the “thumb drive” and the previously ordered

18 Defendants maintain Plaintiff’s latest motion to compel disclosure of the “entire files of thirteen (13)

criminal cases in the form of ‘all material relating in any way to the 13 specifically identified disputes,

including but not limited to any testimony and sworn statements and transcripts’ is far beyond the scope

of discovery ordered by this Court and far beyond that which would be discoverable under Fed. R. Civ. P.

26(b)(1).” (Id.)

index, Defendants agreed to produce this material as soon as the Court issues an order to do so,

lifting the prior stay imposed. (Id.)

On May 2, 2024, Plaintiff filed a Reply in Support of his First and Second Motion for

Sanctions, and in support of his “Ninth” Motion to Compel. (ECF No. 189.) With respect to

Plaintiff’s “Ninth” Motion to Compel, Plaintiff maintains that four (4) depositions from the

Moroughan case file are still being withheld, including the depositions of: (i) Eric Klug, (ii)

Kristie Mondo, (iii) DeMartinez, and (iv) Dr. LaBianca. (Id. at 2.) Plaintiff additionally claims

that Defendants are refusing to produce the transcript of Rodolpho Taylor (one of the “13”

cases). (Id.) Plaintiff claims Mr. Taylor’s 50-h deposition “is incorporated into his federal civil

complaint, in his case before this court that just settled, and that the County previously disclosed

the 50-h deposition in the matter of Shawn Lawrence, yet has taken a contrary position in Mr.

Taylor’s case, refusing to disclose the transcript, claiming Plaintiff is not entitled to it.” (Id.)

With respect to Plaintiff’s Second Motion for Sanctions, Plaintiff argues default is

warranted because the County Defendants have been intentionally withholding information for

years:

[Mr.] Mitchell repeatedly told this [C]ourt, for two years, that the [D]efendants did not

have any documentation to discover in reference to the “Spota documents[,]” which

reflected that position from 2020-2022. However, the Crawford deposition revealed that

the [C]ounty did have Spota documents since January of 2020. [Ms.] Skorupa

vehemently took the position that defendants disclosed everything they were obligated to

disclose and insisted they had nothing to disclose regarding Spota. However, since

February 27, 2024 it has been confirmed by the U.S. Attorney that the [C]ounty in fact,

has had hundreds of F.B.I. reports and documents as well as a full set of transcripts from

the Spota trial never before disclosed.

[Ms. Skorupa] represented to the [C]ourt that she was in the process of copying a DVD

that had complete disclosure from the thirteen (13) cases, that she claimed was repeatedly

sent “over and over.” However, the truth came out on February 27, 2024 that this DVD

was not repeatedly sent, and in fact counsel had no record of the DVD and it would have

been impossible for her to copy or resend it as claimed. The missing DVD was finally

delivered on March 12, 2024 - again alleged to be complete; yet since receiving the

DVD, we have uncovered at least nine witnesses deposition transcripts were withheld,

some with multiple dates of depositions, from the critical Moroughan case, again

intentionally withheld.

Counsel repeatedly told this [C]ourt on the record that the “thumb drive” with 11

categories of I.A. disclosure was complete. Then it came out on February 27, 2024 that

the thumb drive was far from complete and in fact it appears thousands of files are

missing.

(Id. at 3-4.) Plaintiff maintains he has exposed the County Defendants’ “willful pattern of non-

disclosure and unremittent use of disingenuous motion practice to achieve their goals of secrecy,

delay, and obstruction” which support the entry of default in this case. (Id. at 7.)

With respect to Plaintiff’s First Motion for Sanctions, Plaintiff argues that his Counsel is

entitled to the attorney’s fees requested because of her “extensive training and experience

in homicide investigation, crime scene processing, witness interrogation, autopsy science,

serology etc. all of which are skills that allow [her] to have a superior understanding of

[P]laintiff’s underlying claims.” (Id. at 8.) Plaintiff maintains the attacks on Plaintiff’s Counsel’s

creditability “have no merit[,]” given her appointments to serve as part of the New Jersey Office

of Attorney Ethics, District Ethics Committee and the New York City Bar’s Professional

Responsibility Committee. (Id.) Plaintiff further maintains that Defense Counsel’s argument that

because the FBI’s Motion for Reconsideration was successful, that Plaintiff’s Counsel should be

denied a substantial part of her fees is misplaced:

[Plaintiff’s Counsel] pursued the[] Spota documents for years due to the County’s

dishonest refusal to admit possession of the documents, which was proven by the

Crawford deposition, exposing their unethical practices. [A]t the February 27,

2024 [Status Conference], [the Court] was moved to actually read counsel the Alexander

Crawford transcript triggering her to finally acknowledge possession of documentation

she simply refused to acknowledge otherwise. Her actions thereafter, caus[ed] the U.S.

Attorney’s office to intervene and seek privilege[.] The County’s flip-flopping over the

Spota documents wholly supports the award of the undersigned’s full fee for having to

continue to litigate those matters.

(Id.) (internal citations omitted). Plaintiff further maintains that contingent hourly rate of $750

per hour is reasonable under the circumstances. (Id. at 8-9.)

On May 31, 2024, the parties appeared for oral argument on Plaintiff’s First and Second

Motions for Sanctions, and “Ninth” Motion to Compel. (ECF No. 192.) The Court considers the

parties’ arguments on each of Plaintiff’s Motions in turn.

DISCUSSION

Discovery in this matter has been plagued by a series of ad hominem attacks,19 blatant

disregard for Court orders, the undersigned’s individual rules, and the Federal Rules of Civil

Procedure – specifically and most prominently, the “meet and confer” requirement.20 As outlined

above, despite numerous warnings from the undersigned, the parties have continuously failed to

19 The Court cautions both Counsel for Plaintiff and Counsel for the County Defendants to refrain from ad

hominem attacks in papers. See Van Gundy v. Atlas Rare Coins, Inc., No. 23CV2072NJCJMW, 2023 WL

8622844, at *3 (E.D.N.Y. Dec. 13, 2023). “Most of us say things in our heads that we wouldn’t say out

loud. And most of us say things out loud that we wouldn’t say in a court filing. But not everyone is

blessed with the same filter or with the same willingness to use the brake pedal.” Porch v. Univ. of

Illinois at Chicago, No. 21-cv-3848, 2023 U.S. Dist. LEXIS 39619 (N.D. III. Mar. 9, 2023). Such an

approach of using ad hominem attacks is not only beyond acceptable advocacy in this Court’s eyes, but in

fact fails to advance the parties’ position or persuade the court in any way. Indeed, the personal attacks

undermine the mudslinger’s credibility in this Court’s view.

20 The Federal Rules of Civil Procedure, the Local Civil Rules of this Court, and the undersigned's

Individual Practice Rules concomitantly require that parties meet and confer in a good faith attempt to

resolve discovery disputes before formally initiating motion practice. See Individual Practice Rule 3.A;

Local Civil Rules 26.4, 37.3(a); Fed R. Civ. P. 37(a). This command is repeatedly reaffirmed – perhaps

because the meet and confer requirement obviates unnecessary judicial handholding and encourages

parties to raise only genuine disputes that could not otherwise be resolved with good faith and

civility. See Excess Ins. Co. v. Rochdale Ins. Co., No. 05-CV-10174, 2007 WL 2900217, at *1 (S.D.N.Y.

Oct. 4, 2007) (“The purpose of the meet and confer requirement is to resolve discovery matters without

the court’s intervention to the greatest extent possible. Only those matters that remain unresolved after

serious attempts to reach agreement should be the subject of a [discovery motion].”); see also Ross v.

Citifinancial, Inc., 203 F.R.D. 239, 240 (S.D. Miss. 2001) (the meet and confer “prerequisite is not an

empty formality” and “cannot be satisfied by including with the motion copies of correspondence that

discuss the discovery at issue”).

meaningfully meet and confer21 to resolve disputes over the Monell discovery, Internal Affairs

files, and Spota documents without judicial intervention, and the County Defendants have failed

to meet their production obligations – and notably, have made misrepresentations to the Court –

with respect to these materials, resulting in a delay of discovery for over three years.22 As

explained further below, the undersigned finds that Plaintiff is entitled to attorneys fees and costs

for his efforts to pursue these materials; however, the undersigned also finds that sanctions in the

form of default judgment against the County Defendants is inappropriate under the

21 The parties are reminded – once again – that to “‘[c]onfer’ means to meet, in person or by telephone,

and make a genuine effort to resolve the dispute by determining ... (a) what the requesting party is

actually seeking, (b) what the discovering party is reasonably capable of producing that is responsive to

the request, and (c) what specific genuine issues, if any, cannot be resolved without judicial intervention.”

Big Apple Pyrotechnics v. Sparktacular Inc., No. 05 Civ. 9994, 2006 WL 587331, at *1 (S.D.N.Y. Mar.

8, 2006); see also Deckon v. Chidebere, No. 93 Civ. 7845, 1994 WL 494885, at *5 (S.D.N.Y. Sept. 9,

1994). The movant must provide evidence of its good faith efforts; a mere conclusory statement where the

movant asserts he has fulfilled this requirement is insufficient. See Prescient Partners, L.P. v. Fieldcrest

Cannon, Inc., No. 96 Civ. 7590, 1998 WL 67672, at *2 (S.D.N.Y. Feb. 18, 1998) (citing U.S. Bankcorp

Equip. Fin., Inc. v. Babylon Transit, Inc. 270 F.R.D. 136, 140, (E.D.N.Y. 2010)); Harris v. Target

Corporation, No. CA 17-0569-CG-MU, 2018 WL 6220109, at *1 (S.D. Ala. Aug. 30, 2018) (“Simply

corresponding with opposing counsel is not considered a good-faith attempt to confer or have a

conference to resolve discovery disputes.”); Antonis v. Elecs. for Imaging, Inc., No. CIV. 07-CV-163JL,

2008 WL 169955, at *1 (D.N.H. Jan. 16, 2008) (holding a serial reiteration of demands over email

“probably does not meet the requirement that the parties confer in good faith about discovery issues

before invoking judicial remedies.”); C.f. Kirschenman v. Auto-Owners Ins., 280 F.R.D. 474, 479 (D.S.D.

2012) (finding sustained communication itemizing the issues with particularity and explaining why those

issues were disputed evinces a good-faith attempt to meet and confer). Plaintiff’s Counsel is further

cautioned that “[n]o motion to compel will be considered by the Court unless the meet and confer

requirement of Rule 37(a)(1) is met[,]” and is directed to refrain from making any further discovery

motions without complying with this requirement. McLain v. Daniel N. Gordon, PC, No. C09-5362BHS,

2010 WL 11685123, at *1 (W.D. Wash. June 29, 2010); Velazquez-Perez v. Devs. Diversified Realty

Corp., 272 F.R.D. 310, 312 (D.P.R. 2011) (“The only thing that can be drawn from these communications

is plaintiff's unwillingness to solve the dispute by threatening the defendant with filing a motion to

compel if the documents requested were not produced.”). “As a party to this lawsuit—indeed, the one

who initiated it” the undersigned notes that “Plaintiff ha[s] an affirmative obligation to move the litigation

forward and to engage in the meet-and-confer process in good faith with Defendants[.]” Nasreen v.

Capitol Petroleum Grp., LLC, 340 F.R.D. 489, 495 (D.D.C. 2022).

22 Fact discovery took nearly four years, having commenced in 2020 and concluded on December 1,

2023. See ECF Nos. 31-1, 136.

circumstances. Finally, the undersigned finds Plaintiff is entitled to previously ordered

production of Internal Affairs files and Monell discovery.

L. Plaintiff's First Motion for Sanctions

A. Scope of Fee Award

“A party that fails to cooperate i discovery or comply with court orders is subject to

sanctions under Rule 37 of the Federal Rules of Civil Procedure.” Allied 100, LLC v. Chadha,

No. 20-CV-03493 (AMD) (PK), 2021 WL 7184241, at *6 (E.D.N.Y. July 26, 2021). “Rule

37(a)(5)(C) provides that if a motion to compel is granted, after giving an opportunity to be

heard, the court may apportion reasonable expenses for the motion.” Cidoni v. Woodhaven Ctr.

of Care, No. 221CV03654JMAIMW, 2023 WL 2465167, at *2 (E.D.N.Y. Mar. 10, 2023) (citing

Fed. R. Civ. P. 37 (a)(5)(C)). “The imposition of sanctions under Rule 37 lies within the broad

discretion of the district court.” Perros v. Cnty of Nassau, CV 15-5598 (GRB)(AKT), 2021 WL

4480666, at *7 (E.D.N.Y. Sep. 30,2021). “Rule 37 is most relevant when a party fails to comply

with a court order to produce discovery or fails to produce to an adversary relevant, requested

information.” Jd. (internal quotation and citation omitted).

Here, Plaintiff has made several motions to compel Monell discovery, Internal Affairs

files, and Spota documents since the commencement of discovery in 2020:

[=

[anne anne EO

4/15/2021 | ECF No. 69 First Motion to Compel See ECF No. 90.

zl

Granted in part; denied in part.

12/31/2021 ECF No. 98 Second Motion to Compel See ECF No. 111.

11/19/2023 ECF No. 144 Third Motion to Compel Denied. See ECF No. 149.

Denied. See Electronic Order

12/19/2023 ECF No. 148 Fourth Motion to Compel dated December 19, 2023.

1/26/2024 ECF No. 151 Fifth Motion to Compel Granted. See ECF. No. 160.

4/1/2024 ECF No. 174 Sixth Motion to Compel Denied. See Electronic Order

dated April 2, 2024.

4/17/24 ECF No. 182 Seventh Motion to Compel Granted. See ECF No. 194.

See ECF Nos. 69, 98, 144, 148, 151, 174, 182. Of the seven motions made, four were granted.

See ECF Nos. 90, 111, 160, 194. The undersigned finds that Plaintiff is entitled to costs and fees

associated with bringing his First, Second, and Fifth Motions to Compel.23 See e.g., Cidoni v.

Woodhaven Ctr. of Care, No. 221CV03654JMAJMW, 2023 WL 2465167, at *2 (E.D.N.Y. Mar.

10, 2023); Wager v. G4S Secure Integration, LLC, No. 119CV03547MKVKNF, 2021 WL

293076, at *3 (S.D.N.Y. Jan. 28, 2021) (“To recover expenses under Rule 37(a)(5)(A), the only

requirements are that a party has made a motion for an order compelling disclosure or discovery

and that the motion is granted”) (quotes omitted); ECF No. 160 (“In light of the County of

23 At oral argument, Plaintiff clarified that he is not seeking monetary sanctions for any motions to

compel made after January 26, 2024. (ECF No. 192.)

Suffolk Defendants’ admission regarding the Outstanding Monell Discovery, the Court will

consider an application for costs from Plaintiff's Counsel for having to continue to pursue these

materials.”).

The County Defendants have “provided no reason whatsoever to justify [their] failure to

respond to Plaintiff's requests in a timely fashion in the first instance, by the date they

subsequently agreed to respond, or by the date the Court ordered them to respond.” Interpool,

Inc. v. JJS Transportation & Distribution Co., No. 22CV01103JMAJMW, 2022 WL 17335670,

at *2–3 (E.D.N.Y. Nov. 30, 2022). The County Defendants have not only made

misrepresentations to the Court regarding their possession of relevant Spota documents (see ECF

Nos. 90, 93, 144, 160), but have also disregarded clear Court orders with respect to the scope of

production of Monell Discovery and Internal Affairs files, and continue to do so. See ECF No.

189 at 3-4 (identifying that Defense Counsel represented to the Court that “DVD” and “thumb

drive” production was complete, however, at the February 27, 2024 Status Conference, Counsel

admitted on record to having additional documents that still needed to be produced); ECF No.

189 at 2 (Plaintiff maintains that four (4) depositions from the Moroughan case file are still being

withheld to date, as well as the 50-h transcript of Rodolpho Taylor (one of the “13” cases)). See

Sullivan v. Aircraft Servs. Grp., Inc., No. 19 CV 6500 (MKB) (CLP), 2022 WL 16901850, at *4

(E.D.N.Y. Nov. 10, 2022) (imposing sanctions where defendant failed to comply with a clear

court order despite the fact that plaintiff had now produced all of the outstanding documents).

The Court finds the County Defendants’ continued non-compliance with discovery is not

justified, and imposing costs and fees incurred by Plaintiff in obtaining discovery owed to him is

the appropriate sanction.24 Id. at *4 (“Indeed, courts have awarded attorney’s fees and costs

24 For reasons explained further below, the Court finds default judgment inappropriate in this case. See

infra, Section II.

where sanctions were appropriate but where the court found that the sanctioned party’s conduct

did not rise to a level that would warrant the more severe sanctions of dismissal or default.”)

Plaintiff is further entitled to the costs and fees reasonably incurred in preparing this fee

application (i.e., his First Motion for Sanctions). See Robbins & Myers, Inc. v. J.M. Huber Corp.,

No. 01-CV-00201S F, 2010 WL 3992215, at *10 (W.D.N.Y. Oct. 12, 2010) (“A party awarded

attorney’s fees is also entitled to compensation ‘for time reasonably spent in preparing and

defending’ the fee application”) (quoting Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999));

Enmon v. Prospect Cap. Corp., 675 F.3d 138 (2d Cir. 2012) (holding the district court properly

ordered sanctioned law firm to pay for the costs associated with defending the sanctions motion,

even though the sanctions motion was denied in part, where high cost of preparing the sanctions

motion was attributable largely to “firm’s extraordinary pattern of misrepresentations and

unreasonable litigation.”). “All that remains for the Court to determine on this branch of

Plaintiff's application is the reasonableness of Plaintiff's Counsel’s fees.” Cidoni, No.

221CV03654JMAJMW, 2023 WL 2465167, at *2.

B. Assessment of Reasonable Costs and Fees

As previously mentioned, Plaintiff’s Counsel Stephanie McClure, the sole partner of the

Law Office of Stephanie McClure, affirms that her office incurred $101,525.00 in costs and fees

associated with all work done “[r]elating to certain Monell/I.A./Spota Discovery[,]” and has

submitted billing records dated from June 21, 2020 to March 14, 2024. See ECF No. 171-2 at 1-

16. These fees are based on a total of 135.5 hours at an hourly rate of $750 per hour. See id. at

14-16. This Court “enjoys broad discretion in determining the amount of a fee award.” Vincent v.

Comm'r of Soc. Sec., 651 F.3d 299, 307 (2d Cir. 2011). The lodestar calculation, which is “the

product of a reasonable hourly rate and the reasonable number of hours required by the case,”

“creates a ‘presumptively reasonable fee.” Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir.

2011). “A party seeking an award of attorney's fees bears the burden to document ‘the hours

reasonably spent by counsel, and thus must support its request by providing contemporaneous

time records reflected, for each attorney and legal assistant, the date, the hours expended, and the

nature of the work done.’ ” Bds. Trs. Ins., Annuity, Scholarship, & Apprenticeship Training

Funds Sheetmetal Workers’ Int'l Ass'n, Loc. Union No. 137 v. Liberty Signs, Inc., No. CV 10-

1737 (ADS)(AKT), 2011 WL 4374519, at *6 (E.D.N.Y. Aug. 30, 2011), report and

recommendation adopted, 2011 WL 4373893 (E.D.N.Y. Sept. 19, 2011). Therefore, the Court

reviews both Plaintiff's Counsel’s claimed hourly rate and contemporaneous billing records to

determine the reasonableness of the requested fee.

First, “[a] reasonable hourly rate is “ ‘the rate a paying client would be willing to pay,’

based on the ‘prevailing [hourly rate] in the community ... where the district court sits.’ ” E. Sav.

Bank, FSB v. Whyte, No. 13-cv-6111 (CBA)(LB), 2015 WL 790036, at *8 (E.D.N.Y. Feb. 24,

2015) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522

F.3d 182, 190 (2d Cir. 2007)). In assessing a reasonable hourly rate, the Court takes into

consideration the market rate “prevailing in the community for similar services by lawyers of

reasonably comparable skill, experience and reputation.” See Blum v. Stenson, 465 U.S. 886, 895

n.11 (1984). The relevant “‘community’ for purposes of this calculation is the district where the

district court sits.” Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 190. This has

been coined by the Second Circuit as the “forum rule.” Bergerson v. New York State Off. of

Mental Health, Cent. New York Psychiatric Ctr., 652 F.3d 277, 290 (2d Cir. 2011) (“This

Circuit's forum rule generally requires use of the hourly rates employed in the district in which

the reviewing court sits in calculating the presumptively reasonable fee”) (quotes omitted). “The

party applying for fees must support the hourly rates it claims with, for example, evidence of

counsel's expertise and prevailing market rates.” Gesualdi v. Bestech Transp., LLC, No. 14-CV-

1110(JS)(ARL), 2022 WL 866853, at *2 (E.D.N.Y. 2022). “The court may reduce the hours

spent on the litigation to exclude excessive, redundant, or otherwise unnecessary time.”

Advanced Analytics, Inc. v. Citigroup Glob. Markets, Inc., No. 04-CIV-3531 (LTS) (SLC), 2020

WL 91504, at *4 (S.D.N.Y. Jan. 8, 2020).

Ms. McClure is the founding and sole partner of the Law Office of Stephanie McClure

and has been practicing law for approximately eighteen years. See ECF No. 171-1. According to

Ms. McClure’s Affirmation in Support of Attorney’s Fees, she has “successfully represented

clients across the nation in civil and criminal matters, in state and federal courts” in private

practice since 2017. Id. at 3. Prior to starting her own firm in 2017, Ms. McClure clerked for the

Hon. Frederick J. Theemling, J.S.C. for the Superior Court of New Jersey and served as

Assistant Prosecutor for the Hudson County Prosecutor’s office for “nearly a decade.” Id. She

graduated with a juris doctorate from Seton Hall University and a bachelor’s degree from

Fordham University. Id. at 2. “The fact that the [the Law Office of Stephanie McClure] bills [Ms.

McClure’s] time at $750 per hour to it clients is appropriate to consider but not dispositive in

determining a fee award in this context.” Cidoni v. Woodhaven Ctr. of Care, No.

221CV03654JMAJMW, 2023 WL 2465167, at *4; see also Katzenberg v. Lazzari, 2007 WL

2973586 at *6 - 8 (E.D.N.Y. Oct. 9, 2007) (“attorneys’ fees award in the context of an order

requiring a losing party in a litigation to pay the prevailing party “is not the same as the

reasonableness of a bill that a law firm might present to its own paying client”). Ms. McClure

asserts that, based on the billing range found appropriate for partners by the Southern District in

2021 (up to $1,225 per hour down to $626 for 5th year associates in various firms), $750 per

hour “would be appropriate for an attorney particularly well-suited to litigate the case, as here.”

ECF No. 171 at 2-3. Recent case law in the Eastern District suggests that Ms. McClure’s

calculations “may be too generous.” Cidoni, No. 221CV03654JMAJMW, 2023 WL 2465167, at

*4; McLaughlin v. IDT Energy, No. 14 CV 4107, 2018 WL 3642627, at *17 (E.D.N.Y. July 30,

2018) (finding award of rates typical to the Eastern District and noted to be: “$550 for

partners/equity owners with more than thirty years of experience, $500 for partners/equity

owners with more than fifteen years of experience, $450 for partners/equity owners with more

than ten years of experience, $400 for senior associates/associates with more than ten years of

experience, $350 for senior associates/associates with six to nine years of experience, $300 for

associates with three to five years of experience, $250 for associates with fewer than three years

of experience”).

As recently as January 2023, the Eastern District has held that “[i]n this district, hourly

rates ‘generally range from $300.00 to $450.00 for partner-level attorneys, and $200.00 to

$325.00 for those with less experience.’” Williamsburg Climbing Gym Co. LLC v. Ronit Realty

LLC, No. 20 CV 2073 (FB)(RML), 2023 WL 1072952, at *4 (E.D.N.Y. Jan. 9, 2023), report and

recommendation adopted, No. 20-CV-2073-FB-RML, 2023 WL 1070615 (E.D.N.Y. Jan. 27,

2023) (quoting Perrone v. Amato, No. 09 CV 316, 2022 WL 595187, at *3 (E.D.N.Y. Feb. 27,

2022)); Noboa v. Quality Homes USA, Inc., No. 21CV07134JMALGD, 2023 WL 35030, at *2

(E.D.N.Y. Jan. 4, 2023); see also Interpool, Inc., No. 22 CV 1103, 2022 WL 17335670, at *4.

Higher rates are approved where the party applying for fees supports the hourly rate with

evidence such as counsel’s extensive expertise, experience before the federal bar, and

specialization required to litigate the matter. Williamsburg Climbing Gym Co. LLC, 2023 WL

1072952 at *4; Chrysafis v. Marks, 21-CV-2516(GRB)(AYS), 2023 WL 6158537, at *5

(E.D.N.Y. Sep. 21, 2023) (“‘The highest rates in this district are reserved for expert trial

attorneys with extensive experience before the federal bar, who specialize in the practice of civil

rights law and are recognized by their peers as leaders and experts in their fields.’ Such attorneys

have typically shown involvement in teaching and speaking engagements and other academic

and professional achievements, writings published in scholarly and professional journals, or

appearances as an expert in the media, etc.”).

Specifically, in the 1983 civil rights litigation arena, this District has found $450 per hour

appropriate for partners with similar, if not more experience. See e.g., Asseng v. Beisel, No. CV

14-5275 (AYS), 2024 WL 669871, at *4 (E.D.N.Y. Feb. 19, 2024) (collecting cases) (finding

partner Horn’s hourly fee of $450 reasonable where Horn was a 1996 law school graduate with

“extensive experience” litigating civil rights cases “throughout his nearly thirty-year career”);

Chrysafis, 21-CV-2516(GRB)(AYS), 2023 WL 6158537, at *5 (holding partner 1’s rate of $550

reasonable where partner 1 was an expert in the field with 25 years of civil rights litigation

experience on the state and federal level, and had been well as being named “Litigator of the

Week” by The American Lawyer twice, and $450 was appropriate for partner 2 with 14 years of

experience in civil rights litigation and experience arguing in front of the Supreme Court); Claud

v. Brown Harris Stevens of The Hamptons, LLC, No. 2:18-CV-01390, 2024 WL 245261

(E.D.N.Y. Jan. 23, 2024); Jane Doe v. Javier Gonzales, 2:21-CV-04580(JS)(LGD), 2024 WL

2795216, at *3 (E.D.N.Y. May, 21 2024) (finding partner’s hourly rate of $450 was reasonable

as she was the founder of the firm, had 16 years of civil litigation experience, and this rate fell

within the Eastern District's range for partners); Shuford v. Cardoza, No. 17-CV-6349-JRC, 2024

WL 865989, at *3-4 (E.D.N.Y. Feb. 28, 2024) (holding that despite plaintiff’s counsel’s

extensive experience of over 30 years litigating civil rights cases and 25 years with his own law

firm, the $550 rate was considered “unreasonably excessive,” noting that the reasonable rate for

attorneys of his experience in civil rates cases was $450 per hour, and awarding $450/per hour in

attorneys’ fees).

Here, there are no unique circumstances that would justify a departure from the

prevailing market rates in this district. See Aponte v. 5th Ave. Kings Fruit & Vegetables Corp.,

No. 20-CV-5625 (RLM), 2022 WL 17718551, at *2 (E.D.N.Y. Dec. 15, 2022) (“The party

seeking a fee award bears the burden of establishing the reasonableness of the rates charged and

the necessity for the hours spent”). Although the Southern District has found hourly rates of $725

to $940 for partners to be reasonable (see Advanced Analytics, Inc., 2020 WL 91504 at *4), the

Court would run afoul of the Second Circuit's “forum rule” if it applied out-of-district rates to the

case here. Allied 100, LLC, 2021 WL 7184241 at *10 (“To establish that these fees are

reasonable, Plaintiff must either show that the same rates apply in the Eastern District of New

York or that a reasonable client would pay the out-of-district rates”). Ms. McClure does not

provide authority from this District in which counsel was awarded $750 per hour under the

circumstances as she seeks here.25 See e.g., Blonder v. Indep. Cap. Recovery, LLC, No. 21-CV-

25 Ms. Mc Clure conceded at oral argument that she did not provide any authority from the Eastern

District supporting her argument that her $750 per hour fee is reasonable under the circumstances. (ECF

No. 192.) The undersigned permitted Ms. McClure to submit a supplemental brief indicating such

authority, if it existed. (Id.) Ms. McClure filed a supplemental letter in support of her application for

attorneys’ fees on June 3, 2024 (ECF No. 193), primarily relying on: (i) Toyota Lease Tr. v. Vill. of

Freeport, 20-CV-2207(DG)(SL), 2024 WL 639989 (E.D.N.Y. Feb. 15, 2024) (“Toyota”); (ii) HVT, Inc. v.

Port Auth. of N.Y. & N.J., No.15-cv-5867, 2023 WL 5441898 (E.D.N.Y. Aug. 22, 2023) (“HVT”); (iii)

Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, No. 10-cv-2262, 2019 WL

2870721 (E.D.N.Y. June 18, 2019) (“Centro”); and (iv) Santander Consumer U.S. Inc. v. Port Auth. of

N.Y. & N.J., 20-CV-1997(MKB), 2023 WL 5758995 (E.D.N.Y. Sep. 6, 2023) (“Santander”). The Court

finds those cases clearly distinguishable from the instant case in two material respects – first, in those

cases, the Court assessed the reasonableness of and awarded attorneys’ fees following a favorable

judgment for the moving party, not on a motion for sanctions, and second, awarded fees exceeding $600

per hour for attorneys with upwards of thirty-years of experience litigating civil rights matters. See e.g.,

Toyota, 20-CV-2207(DG)(SL), 2024 WL 639989, at *2-3 ($630 was appropriate for partner with 30+

years of relevant experience); HVT, No.15-cv-5867, 2023 WL 5441898, at *1 (same); Centro, No. 10-cv-

2262, 2019 WL 2870721, at *11 (holding $500-600 an hour reasonable, although “at the high end of the

912 (ARR) (AYS), 2023 WL 2236908, at *3 (E.D.N.Y. Feb. 27, 2023) (“Notably, plaintiff's

objection does not cite a single case from this district in which counsel was awarded the hourly

rates sought in this case”). For these reasons, the Court finds the $750 requested hourly rate

higher than what courts have in this District have approved and awarded in civil rights cases.

Accordingly, applying the range of $300 to $450 for partner-level attorneys that is accepted in

this District, the Court concludes that $450 per hour is an appropriate rate for this application.

See e.g., Cidoni, No. 221CV03654JMAJMW, 2023 WL 2465167, at *4.26

Second, “[a]ttorneys must submit contemporaneous records with their fee applications to

document the hours reasonably billed.” Id. at *5 (citing Scott v. City of New York, 626 F.3d 130,

133 (2d Cir. 2010)). In assessing a fee application and the supporting documentation, the Court

should not include “excessive, redundant or otherwise unnecessary hours.” Quarantino v. Tiffany

& Co., 166 F.3d 422, 425 (2d Cir. 1999). This does not mean that Courts should become “green-

Eastern District’s spectrum,” in light of the attorneys having 40-60 years of civil rights litigation and

being “experts” in the field, demonstrated through experience arguing in front of the Supreme Court, civil

rights law book publications, and roles as law professors); Santander, 20-CV-1997(MKB), 2023 WL

5758995, at *4 (awarding $600 per hour in fees for partners with 30+ years of experience).

26 In reaching this conclusion, the undersigned has considered “‘all case-specific variables’ including the

factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) in

determining the reasonable hourly rate[:] . . . (1) the time and labor required; (2) the novelty and difficulty

of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of

employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6)

whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances;

(8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of

the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar cases[,]” and finds that the majority of the factors

weigh in favor of assigning a lesser fee than requested. Chrysafis, 21-CV-2516(GRB)(AYS), 2023 WL

6158537 at *4 (internal citations omitted) (“The Second Circuit instructed district courts to consider all

case-specific variables including the factors set forth in Johnson v. Georgia Highway Express, Inc., 488

F.2d 714 (5th Cir. 1974) in determining the reasonable hourly rate. However, the Court need not

robotically recite and make separate findings as to all twelve of the Johnson factors.”) Notably, Plaintiff

has not shown this is “exceptional case where a reasonable client would have selected out-of-district

counsel because doing so would likely (not just possibly) produce a substantially better net result” such

that “[a]n out-of- district rate [is] appropriate.” Centro, No. 10-cv-2262, 2019 WL 2870721, at *9

(internal citations omitted).

eyeshade accountants” but merely that the court has discretion to deduct a reasonable percentage

of hours as a “practical means of trimming fat from a fee application.” Allied 100, LLC, 2021

WL 7184241 at *12. Here, Ms. Mc Clure submitted contemporaneous billing records for all

billing events related to certain “Monell/I.A./Spota Discovery” for a span of three years – June

21, 2020 to March 14, 2024. See ECF No. 171-2 at 1-16.

For the reasons stated above, the Court finds Plaintiff Counsel’s submission exceeds the

scope of records to be considered in Plaintiff’s fee application, as Plaintiff is only entitled to

recover the costs and fees associated with his First, Second, and Fifth Motions to Compel.

Therefore, Plaintiff is directed to submit updated time records to reflect the costs and fees

incurred in connection with making these Motions for the Court’s consideration, to which the

Court will calculate the total fee award based on a rate of $450 per hour. Cidoni, No.

221CV03654JMAJMW, 2023 WL 2465167, at *3 (“[T]o the extent Plaintiff seeks additional

sanctions outside of those previously granted by the Court in connection with [his] Motion to

Compel[,] [the] request is denied as it is outside the scope of this Court’s prior orders and

Plaintiff has not met the requirements of Rule [37].”).

II. Plaintiff’s Second Motion for Sanctions

Rule 16 of the Federal Rules of Civil Procedure authorizes the imposition of sanctions—

including those authorized by Rule 37(b)(2)(A)(ii)-(vii)— when a party fails to appear at a court-

ordered conference or fails to comply with other pretrial orders. Fed. R. Civ. P. 16(f); see

Rahman v. Red Chili Indian Café, Inc., 17-CV-5156 (RA) (BCM), 2019 WL 6619893, at *3

(S.D.N.Y. July 12, 2019). In such circumstances, the Rules authorize sanctions in the form of

“striking pleadings in whole or in part” and “rendering a default judgment against the

disobedient party.” Fed. R. Civ. P. 37(b)(2)(A)(iii), (vi). Courts look to several factors when

considering the appropriate sanction, including “(1) the willfulness of the non-compliant party or

the reason for the noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the

period of noncompliance[;] and (4) whether the non-complaint party had been warned of the

consequences of . . . noncompliance.” Sanchez v. Jyp Foods Inc., 16-CV-4472 (JLC), 2018 WL

4502008, at *3 (S.D.N.Y. Sept. 20, 2018) (quoting Agiwal v. Mid Island Mortg. Corp., 555 F.3d

298, 302 (2d Cir. 2009)).

Typically, “a single pretrial violation, such as [a] party’s failure to respond to a document

request by the date ordered, would not ordinarily result in an imposition of a sanction of such

finality as striking defendants’ answer and entering judgment by default.” U.S. Freight Co. v.

Penn Cent. Transp. Co., 716 F.2d 954, 954 (2d Cir. 1983) (citation omitted). However, it is well

within the court’s discretion to impose such harsher sanctions where a defendant exhibits a

“continuing saga of dilatory conduct,” and where that party has had notice of the orders with

which they failed to comply, paired with “an opportunity to argue [their] case against the

proposed sanction.” Id.; see Rahman, 2019 WL 6619893 at *3.

The Court has a panoply of options available once it is determined that discovery

sanctions are warranted. “Rule 37 provides a district court with a wide range of sanctions which

it may apply to a wide range of circumstances – potential sanctions extend from payment of

expenses and similar monetary sanctions at one end of the spectrum to default judgment on the

other.” Abante Rooter & Plumbing, Inc. v. Shore Funding Sols., Inc., No. CV176499

(ADS)(AKT), 2019 WL 2436239, at *5 (E.D.N.Y. Mar. 6, 2019), report and recommendation

adopted, No. 217CV06499 (ADS)(AKT), 2019 WL 1986606 (E.D.N.Y. May 6, 2019). The

sanction of striking a defendant’s answer and entering a default is a severe sanction and is only

appropriate “in the most extreme cases.” Id.

Often, when a party has exhibited misconduct that warrants sanctioning, but the

misconduct is not as offensive as to warrant striking of the answer and entering default, courts

will impose other, less draconian sanctions. See e.g., Abante Rooter & Plumbing, Inc., 2019 WL

2436239, at *6 (“[T]he Court concludes that a default judgment as a sanction under Rule 37

would not be appropriate in the instant circumstances. However…in the absence of any

justification for [Defendant’s] conduct, it is clear to the Court that some form of sanction under

Rule 37 is appropriate”); In re The 1031 Tax Grp., LLC, No. ADV. 09-01215 (MG), 2010 WL

2851300, *6 (Bankr. S.D.N.Y. July 16, 2010) (“Although the Court concludes that Hartsdale has

acted willfully and in bad faith, it declines to strike Hartsdale's Answer and enter a default

judgment. Nevertheless, Hartsdale's conduct merits very strong sanctions”); Airlines Reporting

Corp. v. Grecian Travel, Inc., 170 F.R.D. 351 (E.D.N.Y. 1995) (“Here, [Defendant’s] actions do

not quite reach the level where such extreme sanctions should be imposed. . . [Defendant’s]

dilatory behavior warrants an order compelling discovery”).

“There can be no dispute that there has been dilatory misconduct on behalf of [the]

[County] Defendants.” Volpe v. Ryder, No. 19CV02236JMAJMW, 2022 WL 4329475, at *3

(E.D.N.Y. Sept. 19, 2022). Indeed, the County Defendants conceded at the February 27, 2024

Status Conference to being in possession of relevant Spota documents that they previously

represented to both the Court and Plaintiff that they were not in possession of, and have failed to

timely produce Court-ordered production of relevant Monell discovery and Internal Affairs files.

The Court finds that such conduct is grounds for imposing sanctions. See e.g., Volpe, No.

19CV02236JMAJMW, 2022 WL 4329475, at *3. “However, Plaintiff has not established that

Defendants’ non-compliance has been entirely willful.” Id. at *4. “Noncompliance with

discovery orders is considered willful when the court's orders have been clear, when the party

has understood them, and when the party's noncompliance is not due to factors beyond the

party's control.” Ali v. Dainese USA, Inc., 577 F. Supp. 3d 205, 209 (S.D.N.Y. 2021).

Based on Defense Counsel’s representations to the Court during conferences, in status

reports, an during motion practice, it appears that Defendants were making efforts to obtain the

Monell discovery, Internal Affairs files and Spota documents for production to Plaintiff

following the departure of Mr. Mitchell as Counsel for the County Defendants. Indeed, it was in

fact Mr. Mitchell – not Ms. Skorupa – who made numerous misrepresentations to the Court

regarding the Spota documents. See e.g., ECF Nos. 90, 144-2. Evidence additionally suggests

that there was confusion about the location of relevant Court-ordered files in the County’s

possession following Mr. Mitchell’s departure (see e.g., ECF No. 155), and that Plaintiff’s

Counsel presented further difficulties for Defense Counsel in producing this material by her

refusal to explain what remaining items needed to be produced. See e.g., ECF No. 186 (On April

10, 2024, Defense Counsel claim they “spoke on the telephone in a conversation that was alleged

to be a meet and confer regarding the outstanding issues. [D]uring the telephone call[,] [Defense

Counsel] repeatedly requested that [Ms. Mc Clure] specify what documents she felt were not

provided that she believed Plaintiff was entitled to based on the Court’s prior rulings. In

response, she repeatedly reiterated that Plaintiff was entitled to ‘all documents’ without

specificity of what she believed she was missing[.]”); see also ECF Nos. 144, 148, and 174

(denying Plaintiff’s motions to compel on the grounds that the parties failed to adequately “meet

and confer” in compliance with the Federal Rules).

In light of the above, the Court having carefully considered the appropriate sanction,

will order one less severe than the striking of an answer. See Volpe, No. 19CV02236 (JMA)

(JMW), 2022 WL 4329475, at *4 (“Discovery foot-dragging, like what occurred here, standing

alone does not give rise to a finding of willfulness.”); Abusikin v. City of New York, No. 18-CV-

4582 (ATK) (NF), 2020 WL 3547773, at *7 (S.D.N.Y. May 27, 2020), report and

recommendation adopted, No. 18CIV4582 (ATK)(NF), 2020 WL 3546882 (S.D.N.Y. June 30,

2020) (awarding a monetary sanction, rather than dismissal, where plaintiff conceded he did not

comply with the Court's order but had a reasonable explanation as to why); see also Abante

Rooter & Plumbing, Inc. 2019 WL 2436239, at *6 (recommending a monetary sanction, in the

form of reimbursement of fees expended and costs incurred, rather than dismissal, where

Defendant did not meaningfully participate in discovery). “[D]ue to the repeated and

inexplicable delays at the hands of the Defendants after extensions of discovery deadlines had

been marked final, the Court finds that lesser sanctions in the form of costs and attorney's fees

associated with bringing [his Second Motion for Sanctions] to be appropriate.” Volpe, No.

19CV02236JMAJMW, 2022 WL 4329475, at *5; Sullivan, No. 19CV6500MKBCLP, 2022 WL

16901850, at *7 (“While defendants request that the action be dismissed, the Court Orders

plaintiff to reimburse defendants’ attorney's fees and costs necessitated by having to file the

earlier motion to compel and this instant motion seeking sanctions.”). “This sanction should

sufficiently deter [Defendants] from continued non-compliance and if it does not, [they are] on

notice that [they] could face much more serious consequences including dismissal in the future.”

Id.

II. Plaintiff’s Motion to Compel

As stated, Plaintiff’s latest Motion to Compel seeks a two-part Order: (i) compelling the

County Defendants to “disclose all material relating in any way to the 13 specifically identified

disputes, including but not limited to any testimony and sworn statements and transcripts that

[the Court] ordered several years ago[;]” and (ii) compelling the County Defendants to disclose

the Monell discovery contained on the “thumb drive” of the 11 categories, “along with its

publication on PACER and index, consistent with [this Court’s] February 27, 2024 Order.” (ECF

No. 182 at 3.) Previously-ordered discovery with respect to the Internal Affairs files (contained

on a “DVD”) “should have included those Internal Affairs files which pertain to any officer

involved in the ‘thirteen specifically identified case files’ identified earlier in discovery

litigation.” (ECF No. 144.) With respect to these thirteen cases, the Court ordered Defendants to

produce “litigation documents,27 including electronic copies of any depositions, sworn

statements, signed statements, answers to interrogatories, or requests for admission” that are in

“in the possession of any/all of the County Attorneys’ clients.” (ECF No. 144 at 1-2.)28 As to the

Monell discovery contained on the “thumb drive,” Defendants have agreed to provide said

discovery. See ECF No. 186. Accordingly, Plaintiff’s Motion to Compel production of

outstanding Internal Affairs files and Monell Discovery is granted.

CONCLUSION

For the reasons stated herein, Plaintiff’s First Motion for Sanctions (ECF No. 171) is

GRANTED in part and DENIED in part. Plaintiff is directed to file, consistent with this

27 For the reasons stated on record at the Oral Argument, “litigation documents” include “[t]he hearing

minutes of a hearing conducted pursuant to General Municipal Law §50-h and documents pertaining to

Habeas Corpus (criminal) proceedings.” (ECF Nos. 188, 192.)

28 To the extent Plaintiff seeks any files that exceed the scope of this previously ordered production of

Internal Affairs files, Plaintiff’s request is denied. When a party requests an extension of a discovery

deadline after the deadlines in fact have passed, they must file a motion under Fed. R. Civ. P. 6(b)(1)(B)

to re-open discovery. See Fed. R. Civ. P. 6(b)(1)(B) (“When an act may or must be done within a

specified time, the court may, for good cause, extend the time . . .on motion made after the time has

expired.”). Therefore, Plaintiff was required – and failed to make – a motion to re-open discovery in this

case if he is seeking discovery beyond the scope of what was previously ordered. See Moroughan v. Cnty.

of Suffolk, 320 F. Supp. 3d 511, 514 (E.D.N.Y. 2018) (internal quotations and citations omitted) (“A party

seeking to reopen discovery bears the burden of establishing good cause and discovery should not be

extended when there was ample opportunity to pursue the evidence during discovery.”).

decision, a revised proof of costs and fees associated with the making of his First, Second, and

Fifth Motions to Compel, as well as proof of costs and fees associated with the making of his

First Motion for Sanctions, on or before July 3, 2024. Plaintiff’s Second Motion for Sanctions

(ECF No. 177) is GRANTED in part and DENIED in part. The Court finds that lesser sanctions

should be imposed in the form of costs and attorney's fees associated with the bringing of the

motion. Plaintiff is directed to file proof of costs and fees associated with the Second Motion for

Sanctions on or before July 3, 2024.

Finally, Plaintiff’s “Ninth” Motion to Compel (ECF No. 182) is GRANTED. With

respect to the Internal Affairs files, Counsel for Plaintiff is directed to serve Defendants with a

comprehensive and list specifically identifying the outstanding Internal Affairs files (contained

on the “DVD”) to be produced by June 14, 2024, and Defendants are directed to produce

responsive documents to Plaintiff's Counsel on or before June 21, 2024. To the extent the

Defendants do not have possession, custody or control over the Internal Affairs files, they are to

provide Plaintiff with a sworn affidavit stating so. With respect to Monell discovery, Counsel for

the County Defendants is directed to serve on Plaintiff's Counsel and file on ECF an updated

thumb drive containing outstanding Monell discovery, along with a comprehensive index of its

contents, on or before June 14, 2024. To the extent the County Defendants are not in possession

nor have the ability to possess responsive Monell discovery, they are to provide Plaintiff with a

sworn affidavit stating so.

On or before June 21, 2024, the parties are directed to file a Joint Status Report advising

the Court if the “DVD” and “thumb drive” issues raised by Plaintiff’s Counsel at ECF No. 182

has been resolved. If any disagreements remain over the contents of the thumb drive and/or the

DVD, the parties are directed to appear, with the thumb drive, DVD and personal computers, for

an in-person conference scheduled for June 25, 2024 at 11 a.m. at the United States District

Court, Eastern District of New York, 100 Federal Plaza, Courtroom 1020, Central Islip, New

York. If the dispute is reported as resolved, the June 25 conference will be cancelled.

The deadline for all discovery is extended to August 2, 2024, and the last date to take

first step of dispositive motion practice before the Hon. Ramon E. Reyes, Jr. is extended to

August 23, 2024. This is the final extension and there will be no further extensions of these

deadlines.. If a motion for summary judgment is not filed, the parties shall file a letter by that

date indicating they are not moving for summary judgment, at which time the undersigned will

set a date for the Final Pretrial Conference.

Dated: Central Islip, New York

June 7, 2024

S O O R D E R E D:

James M. Wicks

/S/

JAMES M. WICKS

United States Magistrate Judge