Williams v. NYC Board of Elections

DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT DOC #:

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 5 13/2024

CARMAN WILLIAMS,

Plaintiff, OPINION AND ORDER ON

DISCOVERY MOTIONS

-against- 23-CV-5460 (AS) (KHP)

NYC BOARD OF ELECTIONS, et al.,

Defendants.

KATHARINE H. PARKER, United States Magistrate Judge.

Presently before the Court? are several discovery motions and issues raised by the

parties. (ECF Nos. 53, 63, 68, 73, 74, 76, 77, 78.) The Court is satisfied that it has sufficient

information from the written submissions to resolve the issues without the need for a

conference and addresses them below:

BACKGROUND

Plaintiff Carman Williams, who is proceeding pro se, brings this action against the New

York City Board of Elections (“BOE”), its General Counsel Hemalee Patel, Donna Ellaby, an

administrator at the BOE, Carol Winer, an employee of the BOE (collectively the “Defendants” or

the “BOE Defendants”), and Reshma Patel, a volunteer District Leader for the 74** Assembly

District. Williams alleges that Defendants illegally retaliated against her for complaining about

perceived racism against her by Ellaby in violation of Title VII of the Civil Rights Act of 1964

(“Title VII’), 42 U.S.C. § 1983, the New York State Human Rights Law, and the New York City

1 Plaintiff has on multiple occasions addressed the undersigned as “Magistrate” via letter. The correct title is

Magistrate Judge. See United States Magistrate Judges, FMJA,

https://ctd.uscourts.gov/sites/default/files/FMJA%20Brochure.pdf (last visited May 9, 2024).

Human Rights Law. She also alleges that Hemalee Patel commited libel per se when making

statements about her in a submission to the New York State Division of Human Rights

(“NYSDHR”) in response to Plain�ff’s retalia�on charge.

Plain�ff worked as a poll worker in New York City for many years. In early 2022, Plain�ff

wrote to Debra Leibele, Director of Elec�on Day Opera�ons for the BOE, expressing her desire

to work as a poll worker during June 2022 early vo�ng. Plain�ff was directed to contact

Defendant Ellaby, then Early Vo�ng Supervisor for Manhatan. On or about May 31, 2022,

having not heard from Ellaby, Plain�ff sent an email to Leibele complaining that she had not

heard from Ellaby and asser�ng that Ellaby was a “racist” and retalia�ng against Plain�ff.

On June 1, 2022, Ellaby denied Plain�ff’s request to work during early vo�ng due to

having received a report of Plain�ff’s poor work performance. However, Ellaby indicated that

Plain�ff was s�ll eligible to work as a poll worker and indicated that Plain�ff could work on June

28 and August 23.

Plain�ff therea�er filed a complaint with the NYSDHR complaining she had been

unlawfully retaliated against. The BOE responded to the complaint and explained that the

reason Plain�ff had not been assigned to early vo�ng was a record of unsa�sfactory

performance. That complaint was administra�vely terminated at Plain�ff’s request so she could

pursue this ac�on in federal court.

Defendants have moved to dismiss the complaint for failure to state a claim. Among

other things, Defendants argue that there is no individual liability under Title VII, that the

complaint fails to allege facts showing any ac�onable conduct of Hemalee Patel and Carol

Winer, and that the libel claim against Hemalee Patel is barred by absolute privilege. That

mo�on is pending. Defendant Reshma Patel, who is pro se, has moved to dismiss on the ground

that the complaint states no facts relevant to her and that she is not employed by the BOE and

does not know Williams or anything about the issues in this case.

DISCOVERY MOTIONS

The BOE Defendants have moved to stay discovery pending the outcome of their mo�on

to dismiss on the ground that resolu�on of the mo�on may obviate the need for discovery or at

least much of the discovery sought by Plain�ff. The BOE Defendants also have moved to compel

Plain�ff’s deposi�on because Plain�ff has failed to respond to requests to schedule her

deposi�on. The BOE Defendants also complain that Plain�ff has failed to engage in meet and

confers, ignored emails or falsely contended that she did not receive documents that were

mailed or emailed to her and that Plain�ff has blocked emails from defense counsel.

Plain�ff has moved to compel responses to her First and Second Requests for Produc�on

served on the BOE Defendants, an extension of the discovery schedule, preclusion of the BOE

Defendants’ use of documents not produced in discovery in any mo�on or at trial, and an

updated privilege log due to perceived deficiencies of the log. Plain�ff contends that meet and

confers are fu�le due to an�pathy between the par�es.

The Court addresses these issues below.

1. Plain�ff’s Deposi�on

Based on the Court’s review of the leters submited, the Court can resolve the issue of

Plain�ff’s deposi�on without a conference. It is evident that Plain�ff has willfully refused to

schedule her deposi�on and ignored defense counsel’s requests to schedule it. Plain�ff shall

appear for her deposi�on on May 22, 2024. The deposi�on shall take place at the U.S.

Courthouse located at 40 Foley Square, New York, New York in Media�on Room 9 commencing

at 10:00 a.m. Defendants are permited up to 7 hours of ques�oning under the Federal Rules.

The failure of Plain�ff to appear for her deposi�on will result in sanc�ons.

2. Defendants’ Privilege Log

Plain�ff complains that the privilege log produced by Defendants is insufficient. The BOE

Defendants provided Plain�ff with a categorical privilege log indica�ng that they were

withholding emails “submited by Carman Williams threatening li�ga�on against NYC Board of

Elec�ons.” They do not provide a date range for the emails or indicate authors or recipients or

whether the emails were for the purpose of seeking or providing legal advice. Categorical

privilege logs are permited in this District. However, the log is s�ll deficient. To start, any email

that Williams sent to the BOE is not privileged. To the extent that a Williams email threatening

li�ga�on was forwarded to others within the BOE in connec�on with requests seeking legal

advice or providing legal advice, those later communica�ons would be subject to the atorney-

client privilege. Accordingly, by the close of discovery, the BOE Defendants shall provide

Plain�ff with an updated privilege log that includes the date ranges of the emails referenced in

the log, the authors and recipients of the emails, and indica�ng whether any of the authors or

recipients are atorneys. To the extent that non-privileged por�ons of the emails can be

segregated and produced, the emails shall be produced to Plain�ff in a redacted form with the

privileged por�ons of the email thread redacted. The BOE Defendants are not required to

provide a privilege log as to privileged communica�ons that post-date the filing of the NYSDHR

Charge or a privilege log as to documents responsive to Plain�ff’s document requests that the

Court has stricken in whole or in part as set forth below. Addi�onally, by the close of discovery,

the BOE Defendants shall confirm that there are no other documents being withheld on the

basis of privilege.

3. Use of Documents on a Mo�on or At Trial

In her mo�on to compel, Plain�ff asks the Court to preclude the BOE Defendants “from

u�lizing any documents and records requested but not provided on any mo�on or at trial.” (ECF

No. 53.) Although there is no indica�on that the BOE Defendants intend to use withheld

documents to support a mo�on for summary judgment or at trial, the Court clarifies that no

party is permited to use documents that have been requested in discovery but not produced, in

connec�on with a mo�on for summary judgment or at trial.

4. Plain�ffs’ First and Second Requests for Documents

Plain�ff complains that Defendants have not produced documents she requested or ESI.

Par�es may obtain discovery regarding any nonprivileged mater that is relevant to any party's

claim or defense and propor�onal to the needs of the case, considering the importance of the

issues at stake in the ac�on, the amount in controversy, the par�es’ rela�ve access to relevant

informa�on, the par�es’ resources, the importance of the discovery in resolving the issues, and

whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R.

Civ. P. 26(b).

The party moving to compel discovery “bears the ini�al burden of demonstra�ng that

the informa�on sought is relevant and propor�onal.” Sportvision, Inc. v. MLB Advanced Media,

L.P., No. 18 Civ. 3025 (PGG) (VF), 2022 WL 2817141, at *1 (S.D.N.Y. July 19, 2022); see also

Citizens Union of City of N.Y. v. Attorney General of N.Y., 269 F. Supp. 3d 124, 139 (S.D.N.Y. 2017)

(“Plain�ffs, as the par�es seeking discovery from [defendant], bear the ini�al burden of proving

that the informa�on and documents sought are relevant and propor�onal to the needs of the

case.”). Once the moving party has made this showing, “the burden shi�s to the opposing party

to jus�fy curtailing discovery.” Sportvision, 2022 WL 2817141, at *1.

In considering Plain�ff’s mo�on, I also note that Magistrate Judges overseeing discovery

have “broad discre�on to manage the discovery process . . .” Emanuel v. Gap, Inc., No. 19-CV-

3617 (PMH), 2020 WL 5995134, at *3 (S.D.N.Y. Oct. 9, 2020). Pursuant to Federal Rule of Civil

Procedure 26(b)(2)(C), a court may limit discovery if, inter alia, the discovery sought is

unreasonably cumula�ve or the proposed discovery is not relevant or propor�onal to the needs

of the case. Addi�onally, when considering Plain�ff’s complaints about Defendants’ compliance

with their discovery obliga�ons, I note that Federal Rules of Civil Procedure 26 and 34 require

par�es to conduct a reasonable search for documents that are relevant to the claims and

defenses. “The duty to make a ‘reasonable inquiry’ is sa�sfied if the inves�ga�on undertaken by

the atorney and the conclusions drawn therefrom are reasonable under the circumstances . . .

Ul�mately, what is reasonable is a mater for the court to decide on the totality of the

circumstances.” Fed. R. Civ. P. 26 advisory commitee's note to 1983 amendment.

With the above preface, I address Plain�ff’s document requests and Defendants’

objec�ons and responses thereto.

Plain�ff’s First Set of Document Requests (ECF No. 53) contain 26 requests for

documents. They are summarized as follows:

1. Plain�ff’s personnel file

2. All performance reviews of Plain�ff

3. Names of individuals who conducted performance reviews of Plain�ff

4. Copies of all records for the past 5 years detailing poll workers who were moved to

“inac�ve” status with BOE and documenta�on and records detailing the basis for

being classified “inac�ve”

5. Copies of all emails, memoranda, transcripts, that contain the search term “Carman

William”

6. Records and documents of all BOE employees terminated by the Board of

Commissioners in the last 5 years and the basis for same. Copies of their reviews,

warnings, memoranda, search terms for “disciplinary,” “performance,” “warning,”

“lawsuit,” “employment discrimina�on,” “retalia�on”

7. Copies of all employee personnel files of all BOE employees disciplined by the BOE in

the past 5 years for the stated reasons of poor performance and/or behavior

8. Copies of personnel files of all BOE employees terminated by the BOE in the past 5

years for the stated reasons of poor performance and/or behavior

9. Performance reviews of all BOE employees at the Hunter-Brookdale polling loca�on

for early vo�ng 10/1/2021 – 11/7/2021

10. Copies of all Coordinator Notes for the period from 1/1/2015 through 10/21/2022

11. A complete copy of the BOE Employee Handbook in effect January 1, 2022 through

January 31, 2023

12. Memoranda, emails, and documents prepared by your employees/agents detailing

criteria for selec�on of Poll Workers for Early Vo�ng from June 1, 2019 to the present

13. Copies of all discrimina�on complaints alleging racial discrimina�on and/or

retalia�on by BOE pending before any administra�ve tribunal and/or in court

14. Copies of all Coordinator Notes for the past 5 years from the Andrew Heiskell Library

for the Blind by assigned coordinators

15. Copies of performance tracking documents and records created by the Poll Worker

Department staff and/or any other designated employees/contractors that reflect

the performance of poll workers for the past 3 years inclusive of Early Vo�ng

performance reviews

16. Copies of any counseling leters, memos, and warnings issued to Plain�ff by

Defendants’ employees/agents from the start of her employment in 2008 to August

31, 2022

17. Copies of any Performance Improvement Plan leters and documents issued by the

Defendants to any employees inclusive of per diem employees in the past 5 years

from June 1, 2018 through June 1, 2023

18. Defendants’ communica�ons to employees/agents of the Performance Review

Procedures/Best Prac�ces, keyword search of emails for “performance review,”

“implicit bias,” “race”

19. Dates/�mes/places that Defendants met with or discussed performance or behavior-

related concerns and documents and memos detailing said mee�ngs with Poll

Workers including, but not limited to, Plain�ff from 1/1/2008 through 1/1/2003

20. Copies of communica�ons to employees/agents regarding protocols to be followed

for the reten�on of documents and records per�nent to pending li�ga�on

21. All internal communica�ons between Donna Ellaby, Debra Leibele, Brian Camberber,

Lisa Berger, Cynthia Doty, and all Poll Worker department employees from March 1,

2022 through the present regarding “early vo�ng,” “roster,” and “selec�on”

22. Organiza�onal Chart of BOE from 10/1/2021 through the present

23. Copies of Coordinator Job Applica�on/Training Class Materials provided to

coordinators detailing job descrip�on, du�es, and purpose of coordinator Poll Site

notes for the past 5 years

24. Copies of Plain�ff’s training class exams from 1/1/2008 through 1/31/2023

25. Copies of any complaints from voters at poll sites where the Plain�ff worked from

1/1/2008 through February 1, 2023

26. Copies of memos to Plain�ff, Performance Improvement Plans, etc., or materials

apprising Plain�ff of the necessity to improve either her performance or conduct in

order to retain employment as a Poll Worker

Plain�ff’s Second Set of Document Requests (ECF No. 53) contain an addi�onal 16

requests for documents summarized as follows:

1. All Coordinator Notes from P.S. 116 Early Vo�ng Poll Site for the Ini�al Early Vo�ng

period in October 2019. All notes from all 3 coordinators at the site. This includes

ESI and metadata for any records

2. Copies of any Performance Reviews from October 2019 Early Vo�ng site at the

above-indicated polling site; Copies in whatever format they exist including ESI with

metadata

3. Names of all Poll Workers assigned to the site for any of the dates of Early Vo�ng

4. Names of all coordinators at the PS 116 work site for Early Vo�ng

5. Selec�on Roster/Criteria for Early Vo�ng Poll Workers for commencement of Early

Vo�ng in New York in October 2019 – including ESI and metadata

6. Copies of any Notes prepared by BOE Staff that visited Early Vo�ng Poll Site in 2019

Vo�ng in New York in October 2019 – including ESI and metadata

7. Tenure with BOE of all Poll Workers who were assigned to the P.S. 116 poll site for

Early Vo�ng. Current status of the employees who worked at the site including ESI

and metadata

8. Personnel file of Donna Ellaby including any resumes and job applica�ons/promo�on

materials along with any complaints about Ellaby including ESI and metadata

9. Personnel file of Joffrey Burger and resumes and job applica�ons/promo�on

materials along with any complaints received from any individuals either BOE staff

and/or voters about Burger during her tenure with the BOE

10. Personnel file on Carol Winer and any resumes and job applica�ons, including

references and performance reviews during her tenure with the BOE

11. Personnel file of Lisa Burger including any resumes and job applica�ons, including

references and performance reviews with the BOE. Request includes but is not

limited to ESI and metadata

12. Names of all previous employers of Donna Ellaby, Joffree Burger, Carol Winer, and

Lisa Burger. Request includes but is not limited to ESI and metadata

13. Copies of any emails origina�ng from any email address u�lized by Carol Winer to

the BOE for the past three years including ESI and metadata

14. Copies of any emails from or to Cynthia Doty, including ESI and metadata that

contain any of the search terms “Carman Williams” PW #221539, “inac�ve,” “ac�ve”

15. Names of all Poll Workers assigned to Hunter Brookdale, including their posi�on (Poll

Worker, Coordinator, etc.) with the BOE, at the �me of their selec�on to work since

the site became an Early Vo�ng site

16. Performance reviews of all Poll Workers assigned to Hunter Brookdale from 2021

through 2023

The BOE Defendants have objected to the majority of the requests on grounds of

relevance, temporal scope, and propor�onality, and for good reason. This case involves a

narrow issue – whether the BOE Defendants retaliated against Plain�ff by refusing to hire her

for early vo�ng in June 2022 a�er she complained in May 2022. Yet, Plain�ff seeks documents

for a 5+ year period concerning not just her interac�ons with the BOE, but on other poll workers

and BOE employees and managers, along with myriad other documents and communica�ons.

Much of the informa�on sought is completely irrelevant to the claims and defenses in this case.

And, even if some of the informa�on sought is arguably relevant under Rule 26’s broad

defini�on of relevance, the breadth of the informa�on sought is simply not propor�onal to the

needs of the case considering the damages at issue, the scope of the facts at issue, and the

burdens associated with collec�on of all of this informa�on.

Notwithstanding their objec�ons, the BOE Defendants conducted a search for

documents, subject to their objec�ons. They have represented that they have already

produced:

• All correspondence between Plain�ff and Defendants, including correspondence related

to the dissolu�on of her work rela�onship with the BOE and the suspension of her

privilege to work early vo�ng shi�s

• All documents and email communica�ons rela�ng to Plain�ff’s performance including

emails concerning internal complaints and assignments

• Coordinator journals at the polling sites Plain�ff worked, which include performance-

related informa�on about poll workers at those same sites

• Dates on which Plain�ff worked

• Poll worker records pertaining to Plain�ff

• BOE organiza�onal chart

• Site coordinator manual

• Coordinator job descrip�on

The BOE Defendants have explained that the BOE’s legal department, led by Defendant

Hemalee Patel, used search terms “Carman Williams,” “Carman Murray,” and poll worker ID No.

“1195370.” However, they did not disclose the custodians whose emails were searched.

Addi�onally, Plain�ff points out that the poll worker ID number used is not her number.

Taking into account what has already been produced by Defendants, the Court finds that

Defendants have sa�sfied their obliga�ons in part, but that certain addi�onal informa�on and

documents s�ll must be produced as discussed in more detail below. In reaching the

conclusions herein, the Court is mindful that the law requires par�es to conduct a reasonable

search. Raine Grp. v. Reign Capital, 2022 WL 538336, *1 (S.D.N.Y. Feb. 22, 2022). Under Rule

26(g), the “duty to make a ‘reasonable inquiry’ is sa�sfied if the inves�ga�on undertaken by the

atorney and the conclusions drawn therefrom are reasonable under the circumstances.” Fed. R.

Civ. P. 26 advisory committee's note to 1983 amendment. Perfec�on is not the rule, especially

with mul�ple sources of ESI, the tendency for there to be mul�ple copies of the same email or

near-dupes the produc�on of which has no incremental value to the case but exponen�ally

increases the costs of discovery. “Ul�mately, what is reasonable is a mater for the court to

decide on the totality of the circumstances.” Fed. R. Civ. P. 26 advisory commitee's note to 1983

amendment.

As to Plain�ff’s First Set of Document Requests, it is the Court’s understanding that the

BOE Defendants have already produced documents responsive to Requests 1, 2, 3, 16, and 22,

and no further produc�on will be required as to these requests. Request 5 seeks copies of all

emails, memoranda, and transcripts that contain the search term “Carman William”. The BOE

Defendants have informed the Court that they conducted a search for all communica�ons

concerning Carman Williams using the search term of her name. However, they have not

provided the names of custodians whose ESI was searched and appear to have used an

incorrect poll worker number. Defendants shall provide the names of the custodians whose ESI

they searched and run a search in such custodians’ ESI with Plain�ff’s correct poll worker

number. As to Requests 10 and 14, it is the Court’s understanding that the BOE Defendants

produced Coordinator journals at the polling sites where Plain�ff worked, which include

performance-related informa�on about poll workers at those same sites. To the extent

Requests 10 and 14 seek broader informa�on, they are stricken as overbroad and irrelevant. No

further responses are required to Requests 10 and 14. As to Request 11, the employee

handbook applicable to BOE employees in 2022 should be produced. No further response is

required to this request. The remaining Requests that the Court has not yet addressed are also

overbroad, but the Court narrows them and will require produc�on of the following:

• As to Request 12, to the extent not already produced, the BOE Defendants need only

produce documents sufficient to describe criteria for hiring poll workers in 2022.

• As to Request 23, to the extent not already produced, the BOE Defendants need only

produce job descrip�ons applicable to coordinators in 2022 (which the Court

understands was produced) and training materials, if any, given to coordinators in 2022.

If no training materials exist, Defendants shall so state in a leter to Plain�ff.

• As to Request 25, to the extent not already produced, the BOE Defendants need only

produce writen complaints from voters against Plain�ff, if any, made before June 2022.

If none exist, Defendants shall so state in a leter to Plain�ff.

• As to Request 26, the BOE Defendants need only produce performance improvement

plans that were given to Plain�ff, to the extent they exist. If none exist, Defendants shall

so state in a leter to Plain�ff.

The BOE Defendants are not required to respond to Request Numbers 4, 6, 7, 8, 9, 13, 15, 17,

18, 19, 20, 21, and 24 because these requests are overbroad, not tailored to the claims and

defenses in the case, seek irrelevant informa�on and are unduly burdensome They also are not

propor�onal to the needs of the case.

With regard to the Second Set of Document Requests, the BOE Defendants are not

required to respond to Request Numbers 2, 3, 6, 7, 9, 10, 11, 12, 13, 15, and 16 because these

requests are overbroad, not tailored to the claims and defenses in the case, seek irrelevant

informa�on and are unduly burdensome. The Court notes that some of these requests are

redundant of earlier requests and are not propor�onal to the needs of the case.

As to Request 1, it is the Court’s understanding that the BOE Defendants produced

Coordinator journals at the polling sites where Plain�ff worked. To the extent Request 1 seeks

broader informa�on, it is stricken as overbroad and irrelevant. As to Request 5, it is duplica�ve

of Request 12 from Plain�ff’s First Set of Document Requests and therefore no further response

is required.

The remaining Requests that the Court has not yet addressed are also overbroad, but

the Court narrows them and will require produc�on of the following:

• As to Request 4, to the extent not already produced, the BOE Defendants need only

produce the names of coordinators that worked at the polling sites where Plain�ff

worked in 2022, during the dates Plain�ff worked at such sites.

• As to Request 8, to the extent not already produced, the BOE Defendants need only

produce writen complaints of race discrimina�on and retalia�on filed against Donna

Ellaby between 2020 and 2022 (whether internally with BOE or with a state human

rights agency or court). No more is required in response to Request 8. If there are no

such complaints other than the one made by Plain�ff, Defendants shall so state in a

leter to Plain�ff.

• As to Request 14, to the extent not already produced, the BOE Defendants need only

produce emails to or from Cynthia Doty in 2022 that name or discuss or refer to Plain�ff

or her Poll Worker ID number.

Further, I previously ordered the BOE Defendants to produce informa�on regarding disciplinary

discharges of other poll workers who were supervised by the same individuals who supervised

Plain�ff in the two-year period prior to Plain�ff’s last day of employment. It is unclear whether

the BOE Defendants have produced such informa�on. The BOE Defendants allege in their

opposi�on to Plain�ff’s mo�on to compel that comparisons related to the performance of other

poll workers are irrelevant to Plain�ff’s case because Plain�ff has brought a retalia�on claim,

rather than a discrimina�on claim. The Court disagrees. As courts have consistently held,

plain�ffs bringing retalia�on claims may use circumstan�al evidence of “disparate treatment of

fellow employees who engaged in similar conduct” as evidence of “a causal rela�onship

between the protected ac�vity and the adverse employment ac�on.” See Hicks v. Baines, 593

F.3d 159, 170 (2d Cir. 2010). However, the Court has further considered the Defendants’

objec�ons and the claims in the complaint and finds that its prior order should be

narrowed/clarified to require produc�on of discharges of other poll workers who were

discharged or not hired for disciplinary reasons in the two-year period 2020-2022 to the extent

those decisions were made by the people who supervised Plain�ff in 2022 and Defendant

Ellaby. The names of the poll workers may be redacted. Defendants shall produce the

informa�on set forth herein by May 31, 2024.

Plain�ff has complained that she has received Defendants produc�on in hard paper

format and that the BOE Defendants have not produced any ESI, beyond a few emails. Insofar

as Plain�ff has refused to accept email communica�ons and has blocked emails from defense

counsel, she cannot complain about receiving documents in hard copy format. To the extent

Plain�ff has requested “metadata”, she has not explained what metadata she needs or why she

needs it. To the extent Plain�ff complains that she has received copies of only a few emails,

addi�onal emails may be produced a�er Defendants conduct a search pursuant to this Order.

Alterna�vely, Defendants will state in a leter that a�er conduc�ng such addi�onal search, no

further emails were located. The Court also notes that to the extent defense counsel makes

representa�ons to the Court about its search for relevant documents, the Court is en�tled to

rely on them. See, e.g., Greer v. Carlson, No. 20 Civ. 5484 (LTS) (SDA), 2020 WL 7028922, at *3

(S.D.N.Y. Nov. 29, 2020) ("[Defense] counsel is admited to prac�ce in this Court and is an officer

of the Court. If a statement made by counsel is false, he can be subject to discipline. Thus,

courts o�en rely upon statements made by counsel.”); Kozak v. Office Depot, Inc., No. 16 Civ.

943 (LJV) (JJM), 2020 WL 12957618, at *2 (W.D.N.Y. June 22, 2020) (relying on defense counsel's

representa�on that it had produced all documents responsive to plain�ff's request, as “[t]he

court is en�tled to rely on the representa�ons of counsel, as officers of the court”) (internal

cita�ons omited); Mason Tenders Dist. Council of Greater N.Y. v. Phase Constr. Servs., Inc., 318

F.R.D. 28, 42 (S.D.N.Y. 2016) (“Generally, ‘a party's good faith averment that the items sought

simply do not exist, or are not in his possession, custody, or control, should resolve the issue of

failure of produc�on’ since one cannot be required to produce the impossible.”)(internal

cita�ons omited). Finally, in accordance with its discre�on to cabin discovery consistent with

Rule 1 of the Federal Rules of Civil Procedure, and in light of the voluminous requests Plain�ff

has already made and the discovery conducted thus far and ordered herein, Plain�ff is

prohibited from serving addi�onal requests for documents and from serving interrogatories

absent a showing of good cause and permission from this Court.

5. Meet and Confers

Plain�ff contends that meet and confers are fu�le due to alleged “an�pathy” between

the par�es, including defense counsel. (ECF No. 76.) Contrary to Plain�ff’s asser�on, defense

counsel’s communica�ons throughout this li�ga�on have been professional and appropriate.

Plain�ff’s refusal to engage in meet and confer communica�ons with the BOE Defendants

violates both my Individual Rules of Prac�ce and the Local Rules. Further, blocking emails from

defense counsel’s email address is inappropriate and impedes discovery. Plain�ff is required to

comply with her meet and confer obliga�ons.

6. Defendants’ Mo�on to Stay Discovery and Mo�on to Extend Deadlines

The BOE Defendants have moved to stay discovery un�l Judge Subramanian has ruled on

the mo�on to dismiss in order to streamline the discovery process. However, based on

Defendants' representa�ons to the Court as to what they have already produced, taken

together with what the Court has ordered the BOE Defendants to produce above, the Court is

sa�sfied that no further discovery is needed in this mater except possibly addi�onal

deposi�ons that the par�es may no�ce. Because the Court believes the produc�on, if any, of

the documents ordered above can be completed by the discovery deadline, May 31, 2024, the

Court finds it unnecessary to stay discovery.

Therefore, the BOE Defendants’ mo�on to stay discovery is DENIED. For similar reasons,

the Court finds that there is no reason to extend discovery and therefore Plain�ff’s request to

extend discovery deadlines is DENIED.

7. Summary of Ac�on Items

The Court summarizes the items the BOE Defendants are ordered to produce or respond

to by the close of discovery below. To the extent not already produced, the BOE Defendants

must:

A. Provide to Plain�ff an updated privilege log that includes the date ranges of the emails

referenced in the log, the authors and recipients of the emails, and indica�ng whether

any of the authors or recipients are atorneys.

a. To the extent that non-privileged por�ons of the emails can be segregated and

produced, the emails shall be produced in a redacted form with the privileged

por�ons of the email thread redacted.

b. Confirm that no other documents are being withheld on the basis of privilege.

B. Produce any Employee Handbook applicable to BOE employees in 2022.

C. First Set of Document Requests:

a. Request 12: Need only produce documents sufficient to describe criteria for

hiring poll workers in 2022.

b. Request 23: Need only produce job descrip�ons applicable to coordinators in

2022 and training materials, if any, given to coordinators in 2022. If no training

materials exist, Defendants shall so state in a leter to Plain�ff.

c. Request 25: Need only produce writen complaints from voters against Plain�ff

made before June 2022. If none exist, Defendants shall so state in a leter to

Plain�ff.

d. Request 26: Need only produce performance improvement plans that were given

to Plain�ff, to the extent they exist. If none exist, Defendants shall so state in a

leter to Plain�ff.

D. Second Set of Document Requests

a. Request 4: Need only produce the names of coordinators that worked at the

polling sites where Plain�ff worked in 2022, during the dates Plain�ff worked at

such sites.

b. Request 8: Need only produce writen complaints of race discrimina�on and

retalia�on filed against Donna Ellaby between 2020 and 2022 (whether internally

with BOE or with a state human rights agency or court). If there are no such

complaints other than the one made by Plain�ff, Defendants shall so state in a

leter to Plain�ff.

c. Request 14: Need only produce emails to or from Cynthia Doty in 2022 that

name or discuss or refer to Plain�ff or her Poll Worker ID number.

E. To the extent any of the above required documents do not exist, the BOE Defendants

must inform Plain�ff thereof.

F. Provide the names of the custodians whose ESI Defendants searched. Run a search in

such custodians’ ESI with Plain�ff’s correct poll worker number (221539) and provide

Plain�ff with any documents from such searches that have not already been produced.

G. Conduct a search of Cynthia Doty’s ESI for 2022, and provide Plaintiff with any

documents from such search that has not already been produced.

H. Produce discharges of other poll workers who were discharged or not hired for

disciplinary reasons in the two-year period 2020-2022 to the extent those decisions

were made by the people who supervised Plaintiff in 2022 and Defendant Ellaby. The

names of the poll workers may be redacted.

As for Plaintiff, Plaintiff is ordered to appear at her deposition on May 22, 2024, as

detailed above. Plaintiff is also reminded that behavior that impedes discovery, such as not

appearing for a deposition, or blocking opposing counsel’s email address, will not be tolerated

and may result in sanctions.

Conclusion

As set forth more fully above, Plaintiff’s motion to compel is GRANTED in part and

DENIED in part. Defendants’ motion to stay discovery is DENIED. Plaintiff’s motion to extend

discovery deadlines is DENIED.

The Clerk of the Court is respectfully directed to mail a copy of this Order to Plaintiff

and to terminate the motions at ECF Nos. 53 and 77.

SO ORDERED.

DATED: New York, New York

May 13, 2024

Kathavuce H (Aker

KATHARINE H. PARKER

United States Magistrate Judge

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