Gallagher v. The Unified Court System of the State of New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________________

RACHELLE GALLAGHER and

MARK KACHADOURIAN,

Plaintiffs,

v. 3:18-CV-01476

THE UNIFIED COURT SYSTEM

OF THE STATE OF NEW YORK and

RICHARD MILLER, II, individually and in

his official capacity,

Defendants.

________________________________________

THOMAS J. McAVOY,

Senior United States District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiffs Rachelle Gallagher (“Gallagher”) and Mark Kachadourian

(“Kachadourian”)(collectively, “Plaintiffs”), commenced this employment discrimination

action against Defendants Unified Court System of the State of New York ("UCS") and

Richard Miller, II, individually and in his official capacity (“Miller). Plaintiffs’ complaint

seeks damages for defendants’ purported violations of Title VII, the New York State

Human Rights Law, 42 U.S.C. § 1983, and New York common law. The allegations arise

from plaintiffs' employment at the Broome County Family Court courthouse. Defendant

Miller was, at relevant times, an elected Broome County Family Court Judge. He has

since been removed from that position. See Matter of Miller, 35 N.Y.3d 484, 491, 158

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N.E.3d 87, 92 (NY 2020). Kachadourian and Gallagher were hired by the UCS and

assigned to work in Miller’s chambers beginning in January 2015. Compl., Dkt. No. 1, ¶

20. Kachadourian served as a Court Attorney and Gallagher served as a Secretary. See

generally, id. Plaintiffs contend that between 2015 and June 2017 they complained to the

Chief Clerk of the Broome County Family Court on at least fifty (50) separate occasions

regarding Miller's harassment and abuse, but that “Defendants did not investigate or take

any corrective action with respect to Plaintiffs' complaints, nor inform them of their rights

under the Original Sexual Harassment Policy.” Id. ¶ 65. Plaintiffs maintain that “the failure

to initiate any formal complaint procedure or otherwise abide by the Original Sexual

Harassment Policy was due to a de facto policy, practice and custom by UCS of

suppressing complaints of sexual harassment at their source by, among other things,

discouraging the filing of formal complaints, minimizing and normalizing the behavior of

harassers, withholding information from complainants, and intentionally failing to report

acts of harassment.” Id. ¶ 67. Plaintiffs contend that by the time the State of New York,

through its Office of the Inspector General, finally completed an investigation into Miller’s

conduct, Plaintiffs “had unnecessarily been subjected to over two and a half years of

severe and pervasive sexual harassment and abuse by Judge Miller.” Id. ¶ 72. Plaintiff

assert that due in part to their complaints about Miller’s harassment and the possible

resulting legal ramifications to UCS, UCS promulgated "revisions" to the Original

Sexual Harassment Policy that substantially weakened protections for victims of sexual

harassment and discrimination. Id. ¶¶ 75-82. Plaintiffs also contend that they were

retaliated against by UCS because of their complaints against Miller, including being given

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substantially diminished responsibilities, reduced workloads, less substantive work, and

were isolated from their coworkers. Id. ¶¶ 83-86. Plaintiffs also complained about threats

of physical harm from a coworker, and threats from one of Miller’s friends within the

courthouse, but that inadequate actions were taken by UCS to address these threats. Id.

¶¶ 87-98.

Discovery in this matter has been protracted due, in part, to numerous discovery

disputes, primarily between Plaintiffs and UCS. See Owens Decl., Dkt. No. 113-2, ¶ 3.

One such dispute concerned the disclosure of a UCS internal Excel spreadsheet that

tracked workplace conduct complaints, including sexual harassment complaints made by

or against UCS employees. Plaintiffs learned of the existence of the Excel spreadsheet

during a deposition of former Deputy Chief Administrative Judge Michael Coccoma

(retired). Id. ¶ 4. After the parties’ efforts to resolve the discovery dispute regarding

disclosure of the Excel spreadsheet and related material, the Hon. Miroslav Lovric, United

States Magistrate Judge, became involved. Id. ¶ 7. Following an April 23, 2021

telephonic conference with the parties, Judge Lovric ordered that “Defendant UCS shall

deliver to the Court, for an in camera review, all the materials, along with any privilege log,

as specifically identified during the 4/23/2021 hearing.” See Dkt. No. 101. In response to

this order, UCS provided to the Court, inter alia, two spreadsheets and related material

consisting of approximately 3000 documents. See Buckley Decl., Ex. A, Dkt. No. 125-1, a

CM/ECF pp. 4 -8; see also Buckley Decl., Dkt. No. 125, ¶ 4. At a hearing conducted on

April 30, 2021, Judge Lovric directed UCS to release in unredacted format approximately

46 of the 72 files he reviewed, and recommended ways the parties could agree to allow

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disclosure of some of the remaining material so as to not run afoul of his determination

(discussed more fully below). See April 30, 2021 Hearing Transcript, Dkt. No. 109

(“Hearing Trans.”).

Plaintiffs now appeal Judge Lovric’s Order, asking that it be reversed to the extent

UCS is not required to produce certain documents in response to Plaintiffs’ demands for

production. Dkt. No. 113. The Memorandum of Law submitted in support of Plaintiffs’

Notice of Objections/Appeal clarifies that the documents Plaintiffs seek to compel UCS to

produce consist only of documents pertaining to sexual harassment and retaliation;

Plaintiffs are not seeking disclosure of other types of misconduct that may be the subject

of the withheld documents. See Dkt. No. 113-1, a p. 9. Defendant UCS opposes the

appeal. Dkt. 125. For the reasons that follow, the appeal is denied but the Court remands

the matter to Judge Lovric to determine whether some of the withheld files could properly

be disclosed under the Stipulated Protective Order in this case, Dkt. Nos. 39, 74, or in

redacted form.

II. STANDARD OF REVIEW

When a party objects to a magistrate judge's non-dispositive order, the district court

must review the objections and “modify or set aside any part of the order that is clearly

erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). “A

decision is clearly erroneous where ‘the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been committed.’” Collymore v. City of

New York, No. 16-CV-8270-LTS-OTW, 2021 WL 2269538, at *1 (S.D.N.Y. June 3,

2021)(quoting Gualandi v. Adams, 385 F.3d 236, 240 (2d Cir. 2004)(citation omitted)). “An

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order is ‘contrary to law when it fails to apply or misapplies relevant statutes, case law or

rules of procedure.’” Id. (quoting Knitting Fever, Inc. v. Coats Holding Ltd., No.

05-CV-1065 (DRH) (MLO), 2005 WL 3050299, at *3 (E.D.N.Y. Nov. 14, 2005) (internal

quotation marks and citation omitted)). “This standard of review is ‘highly deferential’;

‘magistrate judges are afforded broad discretion in resolving nondispositive disputes and

reversal is appropriate only if their discretion is abused.’” Id. (quoting Thai Lao Lignite

(Thailand) Co. v. Gov't of Lao People's Democratic Republic, 924 F. Supp. 2d 508, 511-12

(S.D.N.Y. 2013) (internal quotation marks and citation omitted)). “Such deference is

particularly appropriate where, as here, a party challenges a magistrate judge's resolution

of the parties' discovery disputes.” Id. (citing Marquez v. Hoffman, No. 18-CV-7315 (ALC)

(GWG), 2019 WL 5940151, at *2 (S.D.N.Y. Oct. 25, 2019) (“Because [a] magistrate judge

is best qualified to judge the entire atmosphere of the discovery process ... [her] rulings on

discovery matters are entitled to substantial deference.”) (internal quotation marks and

citation omitted); Walker v. Carter, No. 12-CV-5384 (ALC) (RLE), 2016 WL 6820554, at *2

(S.D.N.Y. Feb. 4, 2016) (“A magistrate judge has broad discretion to manage discovery

disputes.”)). This standard imposes a heavy burden on the objecting party, and only

permits reversal where the district court determines that the magistrate judge “abused his

broad discretion over resolution of discovery matters.” Labarge v. Chase Manhattan Bank,

N.A., 1997 WL 583122, at * 1 (N.D.N.Y. Sept. 3, 1997); see J. G. Peta, Inc. v. Club

Protection, Inc., 2001 U.S. Dist. LEXIS 6563 *2 (N.D.N.Y. May 17, 2001) ("Magistrate

judges have broad discretion in resolving non-dispositive matters and a party seeking to

overturn a discovery order bears a heavy burden.").

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III. DISCUSSION

a. Judge Lovric’s Decision

In advance of the April 30, 2021 hearing,

UCS submitted to the Court for in camera review in electronic format the

following documents which were either withheld from the parties or produced

with redactions:

a) Two excel spreadsheets of all UCS Inspector General (“IG”) matters maintained

by the office of the Deputy Chief Administrative Judge for all non-NYC Districts

(“DCAJ”) - one for closed matters (100 pages), and one for open matters (11

pages) - together with approximately 3,000 documents referenced in the

spreadsheets which were linked electronically to the spreadsheets and provided to

the Court for in camera review on a thumb-nail drive;

b) Documents relating to a complaint made to non-party Cheryl Lidell

Obenauer by an employee of Broome County Family Court regarding a

Judge and [court attorney] of that Court viewing graphic images in the

workplace of a nude woman running;

c) Draft documents relating to the sexual harassment policy as circulated in

November 2017, and the cover letter relating to that policy, and all

attachments;

d) An IG report relating to an investigation of non-party Eric Burlingame, about

whom Plaintiff Rachelle Gallagher complained and an IG report about non-party

Diane Llewellyn, about whom Plaintiff Rachelle Gallagher complained.

Buckley Decl. ¶ 4.

These materials were produced to the Court under cover of letter dated April 26,

2021. See Buckley Decl., Ex. A. The letter was copied to all parties. Id. This letter

indicates that it “is accompanied by an e-mail to the Court with a password-protected link

by which we are providing to the Court the documents withheld by UCS on grounds of

relevance. All such documents provided for in camera review were also withheld because

they are either (1) privileged (or otherwise highly sensitive) and/or (2) the burden

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associated with their production would be disproportionate to any value they could have in

this case. Those documents are indicated by the file name under which they were

uploaded.” Id. at CM/ECF p. 4 (emphasis added). The cover letter then goes on to

indicate that it “is accompanied by an e-mail to counsel for plaintiffs and defendant Miller

with a password-protected link by which we are producing to the parties certain materials

located by UCS and requested by plaintiffs which we previously withheld as irrelevant to

the claims here -- in many cases those requests also call for information and documents

equally available to the plaintiffs as to UCS. However, for the sake of efficiency, and

avoiding a waste of the Court’s time, we are producing these materials to the parties.” Id.

The cover letter also indicates that “we are also supplying to the parties additional

documents we located in the course of assuring that we had produced relevant,

responsive non-privileged materials relating to the spreadsheets maintained by the Office

of the Deputy Chief Administrative Judge for judicial districts outside New York City. Those

documents required redactions solely for the purpose of removing internal deliberative

material and non-final recommendations. As a result, in an excess of caution, we have

supplied those documents in both redacted and unredacted form to the Court, as

described in more detail below.” Id. The cover letter then goes on to explain UCS’

responses to Plaintiffs’ various discovery requests, indicating that some requests were

complied with, that UCS was unable to find material responsive to one request (noting that

material relative to the particular request had already been provided), and that some

material responsive to other requests was being submitted to the Court for in camera

review. See id. at pp. 5-8. As to the spreadsheets, the cover letter indicates:

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The documents we are providing to the Court along with this letter include

.pdfs of the two excel spreadsheets of all UCS [Inspector General (“IG”)]

matters maintained by the office of the [Office of the Deputy Chief

Administrative Judge for all non-NYC Districts (“DCAJ”)] . See Files entitled

“Closed Cases” and “Inspector General Investigations.”

The spreadsheets track IG internal investigations for the entire state court

system (apart from NYC), and provide links to documents received by the

office of the DCAJ responsible for all the districts outside NYC relating to the

course of the IG investigation. These spreadsheets are not categorized by

the nature of the claim or type of investigation—instead they relate to every

type of complaint and disciplinary matter, and are listed by the name of the

individual investigated. There are two sets of spreadsheets—one for closed

matters (100 pages), and one for open matters (11 pages). There are no

drafts of these spreadsheets, rather, the DCAJ’s office simply maintains a

spreadsheet for keeping track of materials received by it relating to IG

investigations. Together the spreadsheets provide links to approximately

3,000 documents; those documents are located on UCS’ server, and only

the DCAJ’s Chief of Staff has access to those links.

Id. at CM/ECF p. 5. The cover letter then asserts that certain files are governed by

“investigative privilege; deliberative/executive privilege” and that one file involves “attorney

client communication.” Id. at CM/ECF pp. 5-6.

Before Judge Lovric ruled on whether specific files had to be disclosed, Plaintiffs’

counsel argued that the complaints referenced in the spreadsheet “are extremely relevant

to this case because they will be probative to the issue of how the court system responds

as a policy to complaints of sexual harassment in the workplace and what steps they take

or have taken in response to those complaints.” Hearing Trans. at 8. Counsel further

argued: “One of the claims that's being brought by my clients is also a claim of retaliation,

and thus any differences between how their complaints were handled by the court system

and how other complaints were handled by the court system would be extremely relevant

to establishing the court system's motive and their intent with respect to actions that they

took in response to my client's complaints.” Id. Plaintiffs’ counsel acknowledged that

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matters in the spreadsheets other than complaints of sexual harassment were beyond the

scope of discovery, see id.; see also id. at 17-19, but also argued:

[T]o the extent that [the spreadsheet] contains complaints of sexual

harassment, it is extremely relevant, and the court system's suggestion that

providing the plaintiffs' own complaints is sufficient is -- it's -- it sort of doesn't

make a ton of sense given that the plaintiffs already are aware of their own

complaints. What they're not aware of are the complaints that were made by

others in the court system, how those complaints were handled in relation

to their own complaints, when those complaints were dealt with, how quickly

they were dealt with, and a variety of other issues that would be relevant to

this case. So I would -- I would just reassert the plaintiffs' position that the

spreadsheet is extremely relevant.

Id. at 18.

Following the parties’ arguments for and against disclosure, Judge Lovric

addressed whether the 72 files that UCS placed in cloud storage, including the

attachments to those files, needed to be disclosed. See generally, Hearing Trans. Judge

Lovric indicated that even before receiving a thumb drive from UCS containing links to the

documents attached to the spreadsheets, he was “able to very clearly see and understand

what the linked documents were . . . because they were labeled in a fairly descriptive way,

so the Court had a very good understanding of what those ancillary documents are that

came on that thumb drive.” Id. at 20. Judge Lovric indicated that these linked documents

“are very, very voluminous. There's quite a few thousand pages of ancillary linked

documents.” Id. Judge Lovric then proceeded to identify, by their file names and whether

a particular file had an attachment (for example, “2_memo.MSG, with attachment”), 46 of

the 75 files that UCS had to disclose to the parties. See id. at 21-24. As to one file called

“Inspector General Investigations.PDF,” which is a spreadsheet, Judge Lovric directed “as

to that spreadsheet, UCS is to provide to the other parties only the entries relating to

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Defendant Miller and only the ancillary linked documents as they relate to Defendant

Miller. The remainder of the items and ancillary documents in that spreadsheet will not be

disclosed.” Id. at 22. After enumerating the approximately 46 files to be disclosed, Judge

Lovric stated:

The remaining files that were provided to the Court, the remaining portions of

any files that I didn't mention that were provided to the Court by UCS in

those 72 files, will not be disclosed and the Court is not ordering disclosure

as to those others.

Now, with respect to the Court's order, and the Court reviewed this very, very

carefully and thoroughly with respect to the spreadsheets that all the parties

have referenced at the last telephone conference and here today. And those

are two spreadsheets that the parties have alluded to, and one of them is a

spreadsheet that has an itemization of complaints that were reviewed and/or

under review by the IG and/or UCS as they relate to all sorts of employees,

judges, court officers, administrative personnel, law clerks, and the types of

allegations therein are all sorts, all types. One of them is closed

investigations or closed matters, and the other is open. And except for the

portion that I just read a few moments ago relating to Defendant Miller, who

appears on one of those spreadsheets, the remainder of that information the

Court is declining to order UCS to disclose. And the reasoning is as follows:

First, I hear what the plaintiffs are saying, and I understand the plaintiffs'

position. But the materials underlying those spreadsheets and the specific

material therein, first of all, they're highly private matters that do not have

anything to do with the plaintiffs or Defendant Miller or anyone, other than

they identify persons who are alleged to have engaged in some type of

misconduct. They identify the person making the allegations, and they

identify the persons that are alleged to have engaged in the conduct. The

conduct, in this Court's view, is extremely personal and private, and some of

it involves conduct that could be said would be very detrimental to

reputations of persons or individuals having nothing to do with this litigation.

Some of it is not only very personal in nature but some of it could be even

viewed as salacious or in other ways information that would certainly have a

very, very negative view of the individuals, I guess, could be made, and even

in some cases that I reviewed against the person that's making the

allegation. And I do not believe that in this context that the plaintiffs or

Defendant Miller, for that matter, would be required to have that specific type

of information in order to further this litigation.

Hearing Trans. at 24-26.

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Judge Lovric urged the parties to discuss how pertinent aspects of the foregoing

withheld material could be conveyed without identifying anything about the non-parties. Id.,

at p. 28. In particular, Judge Lovric suggested methods by which UCS could provide the

parties with sanitized information from the spreadsheets, “such as how many complaints

were made; categories of complaints; how many of those complaints that were made

involve an allegation of sexual misconduct; how many of those complaints involve work

force harassment; or how many of those complaints involve employees simply not getting

along or employees being mistreated in other ways….” Id., at p. 26. Judge Lovric also

indicated:

Then beyond that, if a party, or, such as the plaintiffs are interested in the

sexual harassment complaints, inquiry can be made of UCS as to those

types, how many of those are substantiated or how many of those resulted in

investigations being conducted or not being conducted. Or how many of

those resulted in UCS taking action or not taking action. And so on. And I

think by doing that the plaintiffs, and even Defendant Miller, could extract

very sanitized but potentially relevant information without compromising the

extreme privacy concerns.

And it is based on that that the Court is not inclined to direct UCS to divulge

the other spreadsheet matters which clearly identify the participants and

clearly identify the nature of the underlying events; and every one of those

underlying events is very, very specific and very unique and very personal,

and that type of information the Court just does not see any relevance in the

parties knowing a very detailed event where someone alleges that someone

did something to someone in some kind of a setting. I just don't see how that

very specific information takes this matter forward in any way. And to begin,

I think it's just a complete invasion of the privacy of all the parties concerned,

especially in light of the fact that it would certainly appear that many of these

underlying events are not public. It's not public knowledge, it did not come

into the public realm, and so the Court declines to direct UCS to divulge that

information.

Again, I would urge the parties to discuss further how the pertinent aspects

of those matters could be conveyed without identifying anything about the

individuals or any personal nature.

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So that's my reasoning and my ruling as to the spreadsheets. And again,

one of them has a listing of closed investigations and the other one has a

listing of open investigations. And whether they're closed or whether they're

open, the argument is compelling as to both. The open investigations are

clearly even more sensitive because they're ongoing. The closed ones are

not only sensitive to the privacy nature that I viewed but also the fact that

they're closed, and in many cases no public event has come forth from that.

So that's -- that's my ruling, and that's my decision on the issue of those two

spreadsheets.

Id. at 27-28.

Judge Lovric continued, indicating that he “would very strongly urge UCS to also

work with the other parties in providing sanitized information that does not in any

way compromise the extreme sensitive nature of the materials that I have declined to

order to be provided. But like I said, again, I think sanitized information can be shared

which will not compromise UCS's concern and I think will yet satisfy what the plaintiffs and

Defendant Miller are trying to assess. ” Id. at 29. Judge Lovric indicated that he thought

“there is a large field of compromise there that will have both of you keeping what you

believe is necessary for your individual clients.” Id.; see Buckley Decl. ¶¶ 5-6.1

b. Parties’ Post-Hearing Communications

By letter dated May 6, 2021, UCS provided the parties with the material directed

to be released pursuant to Judge Lovric’s April 30, 2021 Order. See Buckley Decl. ¶ 12;

1AAG Buckley maintains that at the April 30, 2021 hearing, Judge Lovric directed UCS to release

approximately forty-six files “which included items (b) through (d) listed in [paragraph 4 of her declaration] in

unredacted format.” Buckley Decl. ¶ 5 (citing Hearing Trans., at pp. 21-24). She also maintains that “[o]f the

material provided to the Court via share link by e-mail dated April 26, 2021, the Court directed UCS to

exchange all but a small number of documents that are irrelevant to this action and/or of no probative value.”

Id. She further maintains that, in addition, Judge Lovric directed UCS to provide to the parties in unredacted

format all entries relating to Defendant Miller and the ancillary linked documents as they related to Defendant

Miller from the spreadsheets described at paragraph 4, item (a) above. Id. ¶ 6 (citing Hearing Trans., at

p.22).

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UCS Ex. D, at p. 3. On the same date, Plaintiffs sent a letter to UCS asserting that

“[n]otwithstanding Judge Lovric’s ruling, we continue to assert that all of the documents

submitted to the Court in camera prior to the hearing, including the spreadsheet used by

UCS to track complaints of sexual harassment, are discoverable, highly relevant, and

should be produced.” UCS Ex. D, p. 4 (emphasis in original). The letter also indicated

that “in the interest of seeking a mutually acceptable consensus on this issue, and

avoiding the expense and further delay of an appeal, Plaintiffs propose that UCS consent

to [] produce documents in the narrowly defined categories set forth herein. Plaintiffs

would also consent to such documents being produced subject to the terms of the

comprehensive protective order issued in this case. In exchange, Plaintiffs would agree to

waive any challenge to Judge Lovric’s April 30th Order.” Id. Plaintiffs then set out the

categories of documents it sought. See id. at pp. 4-5.2

2The letter indicated:

Plaintiffs propose that UCS agree to produce the following categories of documents under

the terms discussed above:

1. Any document, and/or portions thereof, in UCS’s possession, custody, or control

concerning:

a. any formal or informal allegations, reports, or complaints of conduct that, if accepted as

true, would constitute sexual harassment or retaliation under UCS’s current sexual

harassment policy; -AND-

i. which conduct was alleged to have occurred, either in whole or in part, in

the building or on the grounds of the Broome County Family Court; -OR-

ii. which conduct was alleged to have been carried out, in whole or in part, by

any person that worked in the building or on the grounds housing Broome

County Family Court at the time of the alleged conduct, regardless of where

the conduct occurred.

2. Any document, and/or portions thereof, in UCS’s possession, custody, or control,

concerning:

a. any formal or informal allegations, reports, or complaints relating to conduct that, if

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In a letter dated May 12, 2021, UCS indicated that it was “willing to provide

‘sanitized’ data of the kind contemplated by Magistrate Judge Lovric, in the categories set

out in [Plaintiffs’] May 6th letter,” giving an example of such sanitized data,3 and indicating

that UCS was willing to discuss other categories of information that Plaintiffs might find

useful. See UCS Ex. E at p. 7. The letter also indicated:

We stand by our position, however, that the entirety of the spreadsheet

materials (apart from those already produced) are highly confidential, involve

the privacy rights of third parties, often privileged, and relate to the claims of

parties relating to grievances with no connection of any kind to the matter

before the Court. They also relate to the confidential and privileged

disciplinary recommendations of the IG, and of the DCAJ, in matters that

have no logical connection to this one.

Moreover, we object to the document demands set out in your May 6th letter

as (1) untimely; (2) not practicable, since they seem to mean to begin

accepted as true, would constitute sexual harassment or retaliation under UCS’s current

sexual harassment policy; -AND-

i. which conduct was alleged to have been carried out, in whole or in part, by:

1. Richard Miller, II, at any time; -OR-

2. Any judge, justice, or magistrate of the Unified Court System between January 1,

2014 and present.

3. Any document, and/or portions thereof, in UCS’s possession, custody, or control, concerning:

a. any formal or informal allegations, reports, or complaints relating to conduct that, if

accepted as true, would constitute sexual harassment or retaliation under UCS’s current

sexual harassment policy; -AND-

i. where such allegations, reports, or complaints were made by a person

appointed to serve at the pleasure of any judge, justice, or magistrate of the

Unified Court System, including, but not limited to, secretaries, law clerks,

assistant law clerks, and court attorneys.

3The letter indicated:

For example, we could list the number of complaints of harassment/retaliation in each of the

three categories mentioned in your letter, the year of such complaints, whether they were

found substantiated, whether they were in Broome County Family Court, and whether a

Judge was complained of in the matter, and whether a personal appointee was making such

a claim.

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discovery all over with regard to the claims of third parties not before the

court; (3) constitute discovery sought in search of a cause of action, and not

the reverse (See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (the Federal

Rules “do[] not unlock discovery for a plaintiff armed with nothing more than

conclusions”); (4) and are unduly burdensome, since they do not restrict

themselves to the spreadsheet materials, but instead relate to absolutely any

document relating to such claims, and, moreover, set no limit on time-frame.

Plaintiffs’ claims in this matter are highly situational—they are fact-specific. Plaintiffs

claim that UCS supervisors did not respond timely or appropriately to their

complaints about Judge Miller. Such a claim involves an examination of what those

complaints were, when they were made, and what the responses were, not the

proverbial safari into UCS’ records in hopes of finding something, in another district,

concerning the confidential complaints and testimony of other parties, relating to a

different situation and different complaints.

Id. at pp. 7-8.

Plaintiffs did not respond directly to UCS’ offer to provide such sanitized information

and instead filed the current appeal. See Buckley Decl. ¶ 15.

c. Analysis

Plaintiffs argue that Judge Lovric’s April 30, 2021 Order “is erroneous, contrary to

law, and must be reversed.” Dkt. No. 113-1 at 2. In particular, Plaintiffs note that the

Federal Rules of Civil Procedure provide for liberal discovery and provide that “[p]arties

may obtain discovery regarding any nonprivileged matter that is relevant to any party’s

claim or defense.” Fed. R. Civ. P. 26(b)(1). They further note that the liberal discovery

rules are even more broadly applied in employment discrimination cases and allow “broad

access to employers’ records in order to document their claims.” Wards Cove Packing Co.

v. Atonio, 490 U.S. 642, 657 (1989), superseded by statute on other grounds, Civil Rights

Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074. Plaintiffs argue that “[u]nder this broad

context, discovery of employment discrimination complaints unrelated to plaintiff’s

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complaint is appropriate.” Dkt. No. 113-1 at 7 (citing Quaratino v. Tiffany & Co., 71 F.3d

58, 60 (2d Cir. 1995)(reversing district court’s dismissal of plaintiff’s Title VII and NYS

Human Rights Law action upon finding that, among other things, an employer’s response

to other similar complaints of discrimination raised material issues of fact with regard to

whether plaintiff was discriminated against); Aman v. Cort Furniture Rental Corp., 85 F.3d

1074, 1086 (3d Cir. 1996) (“Evidence of discrimination against other employees or of a

hostile work environment is relevant to whether one of the principal non-discriminatory

reasons asserted by [an employer] for its actions was in fact a pretext for ...

discrimination.”) (citing cases); Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153, 156 (8th

Cir. 1990), cert denied 498 U.S. 854 (1990) (reversing judgment upon finding that

Magistrate Judge erred by, among other things, excluding evidence of sexual harassment

complaints by others in plaintiff’s workplace and holding that “[b]ecause an employer's

past discriminatory policy and practice may well illustrate that the employer's asserted

reasons for disparate treatment are a pretext for intentional discrimination, this evidence

should normally be freely admitted at trial.”); Bell v. Lockheed Martin Corp., 270 F.R.D.

186, 197 (D.N.J. 2010) (discovery of unrelated complaints permitted to determine how

defendant “identifies and assesses other forms of discrimination vis-à-vis gender and

what, if any, steps they take to remedy the other forms of discrimination they find.”)).

Plaintiffs contend that “[t]he spreadsheet maintained by UCS containing allegations of

sexual harassment, is by its very nature, relevant. These files relate specifically to

complaints of sexual harassment within the UCS system and how those complaints and

investigations were treated by UCS, whether it followed its own policies and practices,

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whether there was an atmosphere of condoning sexual harassment, whether certain types

of complaints were treated more or less favorably, and whether complaints against judges

or complaints by chambers staff were treated the same as complaints by or against other

employees.” Id. at 9. Plaintiffs indicate that they are only seeking documents pertaining to

sexual harassment and retaliation and are not seeking disclosure of other types of

misconduct that may be the subject of the withheld documents. Id. They contend that

“[u]nder the necessarily broad context of the discovery rules, especially with respect to

employment discrimination claims, the withheld documents pertaining to sexual

harassment claims should be considered relevant to the instant litigation.” Id.

Although Plaintiffs “correctly note[] that courts generally apply more liberal

discovery rules in employment discrimination cases, and that comparator evidence is

important to making out a claim of discrimination,” Yoo v. Actimize, Inc., No. 12 CIV. 8108

VSB, 2014 WL 1087974, at *1 (S.D.N.Y. Mar. 19, 2014)(citations omitted); see also Moll v.

Telesector Res. Grp., Inc., 760 F.3d 198, 204 (2d Cir. 2014)(“Evidence relating to

company-wide practices may reveal patterns of discrimination against a group of

employees, increasing the likelihood that an employer’s offered explanation for an

employment decision regarding a particular individual masks a discriminatory

motive.”)(quoting Hollander v. Am. Cyanamid Co. 895 F.2d 80, 84 (2d Cir. 1990)),

Plaintiff’s have not met their heavy burden of showing that Judge Lovric abused his

discretion so that reversal is warranted.

To the extent Judge Lovric ruled that materials that contained personal, private, and

salacious material that could potentially be embarrassing or detrimental to the reputations

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of nonparties did not need to be produced, the order is not contrary to law. See Fed. R.

Civ. P. 26(c)(a court has discretion to limit discovery in order to "protect a party or person

from annoyance, embarrassment, oppression, or undue burden or expense").

To the extent Judge Lovric denied disclosure on relevance grounds, Plaintiffs have

a stronger argument but nonetheless fail to meet their heavy burden of demonstrating that

Judge Lovric abused his broad discretion in managing discovery. Under the Federal

Rules of Civil Procedure, discovery is permitted “regarding any nonprivileged matter that is

relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R.

Civ. P. 26(b)(1). “While discoverability is determined by the broad standard of relevance,

it is not a license for unrestricted discovery.” Rattray v. City of New York, No. 17-CV-8560

(PGG/KHP), 2021 WL 5810903, at *1 (S.D.N.Y. Dec. 6, 2021)(citing Oppenheimer Fund,

Inc. v. Sanders, 437 U.S. 340, 351 (1978); Gucci Am., Inc. v. Guess?, Inc., 790 F. Supp.

2d 136, 139–40 (S.D.N.Y. 2011)). “[A] district court has ‘wide latitude to determine the

scope of discovery,’ and ‘abuses its discretion only when the discovery is so limited as to

affect a party's substantial rights.’” Aviles v. S&P Glob., Inc., No. 17-CV-2987 (JPO/KHP),

2022 WL 278557, at *2 (S.D.N.Y. Jan. 31, 2022)(quoting In re Agent Orange Product

Liability Litigation, 517 F.3d 76, 103 (2d Cir. 2008)(citation omitted)).

Here, Judge Lovric indicated that even before receiving a thumb drive from UCS

containing links to the documents attached to the spreadsheets, he was "able to very

clearly see and understand what the linked documents were . . . because they were

labeled in a fairly descriptive way, so the Court had a very good understanding of what

those ancillary documents are that came on that thumb drive." Hearing Trans. at 20. He

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further indicated that he reviewed the submitted material “very, very carefully and

thoroughly with respect to the spreadsheets,” id. at 24, and found the underlying material

involved conduct that was “extremely personal and private” and that he did not believe that

“in this context . . . the plaintiffs or Defendant Miller . . . would be required to have that

specific type of information in order to further this litigation.” Id. at 26. He also indicated

that he was “not inclined to direct UCS to divulge the other spreadsheet matters which

clearly identify the participants and clearly identify the nature of the underlying events; and

every one of those underlying events is very, very specific and very unique and very

personal, and that type of information the Court just does not see any relevance in the

parties knowing a very detailed event where someone alleges that someone did

something to someone in some kind of a setting. I just don't see how that very specific

information takes this matter forward in any way.” Id. at 27-28.

Judge Lovric did not provide any further discussion as to whether the withheld

material, perhaps in a redacted form to remove the participants’ names, would be relevant

to the issues addressed by Plaintiffs’ counsel. Nevertheless, because Judge Lovric was

justified in limiting discovery of private and embarrassing information, and because the

material he reviewed involved very personal, unique, and specific conduct that Judge

Lovric did not see as “taking this matter forward in any way,” the Court cannot conclude

that Plaintiffs have met their heavy burden of demonstrating that Judge Lovric abused his

broad discretion over resolution of discovery matters. Furthermore, Plaintiffs have not

established that discovery overall is so limited as to affect their substantial rights.

Plaintiffs’ arguments as to UCS’ lack of a privilege log is of no moment on this

appeal because Judge Lovric did not restrict disclosure on the grounds that any material

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was privileged. This appeal is not a vehicle for the Court to reconsider Judge Lovric’s

discovery determination de novo, or to assess whether there is some reason other than

that relied upon by Judge Lovric to vacate his determination.

Likewise, there is no merit to Plaintiffs’ argument that Judge Lovric’s decision to

deny the disclosure of the withheld documents was an abuse of discretion, clearly

erroneous, and contrary to law because he could have disclosed the sensitive material

using the Stipulated Protective Order in this case. None of the parties referenced the use

of the Stipulated Protective Order (that guides the parties’ disclosures), and Judge Lovric

did not abuse his discretion for failing to utilize a device the parties failed to reference.

Moreover, for the reasons discussed above, Plaintiffs have not met their heavy burden of

establishing that Judge Lovric abused his discretion in limiting disclosure of the materials

he reviewed.

That being the case, however, the hearing transcript indicates that there may be

potentially relevant information that Judge Lovric felt could be acquired through sanitized

disclosures. See Hearing Trans., at 27 (“And I think by doing that the plaintiffs, and even

Defendant Miller, could extract very sanitized but potentially relevant information without

compromising the extreme privacy concerns.”). While the Plaintiffs’ and UCS’ post-

hearing communications indicate that they could not come to an agreement on utilizing

Judge Lovric’s proposed procedure, the interests of justice dictate that the matter be

remanded to Judge Lovric so he can determine whether relevant material can be provided

to Plaintiffs and Defendant Miller either in a redacted form, or through the Stipulated

Protective Order. The Court realizes that this could entail extending discovery and motion

deadlines, addressing UCS’ claims of privilege, and determining whether this discovery is

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unreasonably cumulative or duplicative, if the party seeking discovery already has ample

opportunity to obtain the information sought, if the discovery is proportional to the case, or

if the burden or expense of the discovery outweighs its likely benefit. See Fed. R. Civ. P.

26(b)(1-2); see also Murphy Decl., Dkt. No. 125-7,4 ¶ 12 (“[T]he spreadsheets relate to

highly confidential and sensitive internal investigations, including investigations of alleged

criminal behavior, and criminal records of employees. Given the variety and types of

matters investigated and tracked by the spreadsheet, the spreadsheet itself and the linked

documents are of a highly sensitive nature to the subject employees and to the

complainants and witnesses who are assured by the IG that their statements will be kept

confidential to the fullest extent possible. Release of this information to third parties, who

could then seek to explore those claims and use them in this litigation, would contradict

these assurances of witnesses' confidentiality, and dissuade them and other potential

witnesses from speaking candidly with the IG.”); id., ¶ 13 (“Only a very few of the

approximately 500 IG investigations and 2,700 documents reflected on the spreadsheets

relate to complaints of sexual harassment. Moreover, a review of the face of the

spreadsheets does not necessarily reveal whether there was a complaint of sexual

harassment. . . . [T]o identify any and all IG investigations of sexual harassment

complaints reflected on the spreadsheets would effectively require individual review of

each investigation reflected on those sheets-a burdensome and unnecessary task.”).

However, Judge Lovric is in the best position to address these issues and to manage

4Scott Murphy is the Chief of Staff for the Office of the Deputy Chief Administrative Judge for Courts

Outside New York City, part of UCS. He reports directly to Hon. Vito C. Caruso, Deputy Chief Administrative

Judge for Courts Outside New York ("DCAJ"). See Murphy Decl., Dkt. No. 125-7, ¶ 1.

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discovery.

IV. CONCLUSION

For the reasons set forth above, Plaintiffs’ appeal seeking to vacate or modify

Judge Lovric’s April 30, 2021 discovery decision, Dkt. No. 113, is DENIED, but the Court

remands the matter to Judge Lovric to determine whether some of the withheld files he

addressed on April 30, 2021 could properly be disclosed under the Stipulated Protective

Order in this case, or in redacted form.

IT IS SO ORDERED.

Dated: March 25, 2022 Cong ay

Thomas J. M¢gAvoy

Senior, U.S. District Judge

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