The opinion
UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
ANDRE BROWN,
Plaintiff, DECISION AND ORDER
11-CV-35S
v.
C.O. VICTOR,
CORRECTION OFFICER DAMSTETTER,
C.O. CONNOLLEY, and
CHRISTINA LoVERDE
Defendants.
In this action, Plaintiff Andre Brown alleges that Defendants assaulted him on
October 16, 2007, while he was an inmate at the Attica Correctional Facility. Having
recently (December 2022) been released from custody as a result of his successful
motion to vacate his state conviction, Brown now moves to reopen discovery to allow for
limited expert discovery (vocational and economic) relating to future lost-earnings
damages. Defendants oppose Brown’s request on the grounds that he failed to act
diligently in not pursuing the requested discovery during the discovery period. Further
familiarity with the parties’ arguments is presumed. Having fully considered the parties’
positions, this Court finds good cause to grant Brown’s motion.
District courts have wide discretion to determine the scope and process of
discovery. See EM Ltd. v. Republic of Arg., 695 F.3d 201, 2017 (2d Cir. 2012) (citation
omitted). A party seeking to reopen a closed discovery period must demonstrate “good
cause” for reopening. See Fed. R. Civ. Pro. 16 (b)(4) (providing that “[a] schedule may
be modified only for good cause and with the judge’s consent”); In Re Terrorist Attacks
1
on Sept. 11, 2001, 03 MDL 1570 (GBD)(SN), 2023 WL 1797629, at *4 (S.D.N.Y. Feb. 7,
2023) (“The legal standard for allowing additional document discovery is ‘good cause’.”).
Six factors guide the good-cause inquiry: (1) whether trial is imminent; (2) whether the
request is opposed; (3) whether the non-moving party would be prejudiced; (4) whether
the moving party acted diligently; (5) whether the need for additional discovery was
foreseeable in light of the time originally permitted for discovery; and (6) whether the
discovery is likely to lead to relevant evidence. See Moore v. Peters, 341 F.R.D. 463,
472 (W.D.N.Y. 2022); Moroughan v. Cnty. of Suffolk, 320 F. Supp. 3d 511, 515 (E.D.N.Y.
2018) (citing cases).
In this Court’s view, four of the six factors weigh squarely in favor of reopening
discovery to allow for the limited discovery requested. First, trial is not scheduled to
begin until June 27, 2023, and no party has yet filed any pretrial submissions. Second,
while Defendants oppose the request, their primary basis for doing so—that Brown knew
during the discovery period that he was pursuing vacatur of his state conviction yet failed
to disclose vocational and economic expert witnesses—is not compelling, as further
discussed below. Third, other than likely necessitating a modest adjournment of the
present trial date, Defendants identify no specific prejudice. And fourth, it is undisputed
that the requested discovery is likely to lead to relevant evidence.
The fourth and fifth factors are not as clear-cut. While it was foreseeable that
Brown could be successful in his bid to vacate his state conviction, it is difficult to conclude
under the circumstances that he failed to act diligently in not pursuing expert discovery
related to that long-shot possibility. During the discovery period, Brown was serving two
2
consecutive 20-year sentences, with little prospects for release. Pursuit of expert
discovery relating to future lost earnings would therefore have been entirely contingent
and speculative. It was not until December 2022 that the contingency was lifted.
Moreover, given Brown’s pro se status for much of the discovery period and his
subsequent representation by counsel acting in a pro bono capacity, pursuit of this expert
discovery in the face of such a remote contingency would likely not have been deemed
the most efficient, cost-effective, or reasonable course. Although Brown or counsel
could have explicitly reserved the right to pursue additional expert discovery in the event
Brown’s conviction was at any point vacated, this Court cannot conclude that their failure
to do so constitutes a lack of diligence, particularly given the unusual circumstances of
this case.
Accordingly, with the relevant factors weighing predominantly in Brown’s favor, this
Court finds good cause to reopen discovery for the limited purposes requested.
IT HEREBY IS ORDERED, that Plaintiff’s Motion to Reopen Discovery (Docket
No. 188) is GRANTED.
FURTHER, that within 14 days of the entry date of this decision, counsel for the
parties must meet and confer about a discovery schedule and the need, if any, for an
adjournment of the June 27, 2023 trial date.
3
FURTHER, that within 21 days of the entry date of this decision, counsel for the
parties must file a joint written status report concerning a proposed discovery schedule
and, if necessary, a proposed amended pretrial schedule and adjourned trial date.
SO ORDERED.
Dated: February 28, 2023
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
4