The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
LAURIE ANN SMITH, Individually and as
Administratrix of the Estate of Thomas J.
Blancke, Sr., deceased,
DECISION
Plaintiff, and
v. ORDER
ADRIAN BAUGH, 16-CV-00906-LJV-LGF
GEORGE BROWN,
MICHAEL WOODARD, and
JOHN and JANE DOES, said names being
fictitious and presently unknown persons
believed to be correction officers, employees,
staff and/or agents of Five Points Correctional
Facility,
Defendants.
______________________________________
APPEARANCES: THE COCHRAN FIRM
Attorneys for Plaintiff
DEREK SCOTT SELLS, and
STEPHANIE ROSE CORREA
55 Broadway
22nd Floor
New York, New York 10006
LETITIA A. JAMES
ATTORNEY GENERAL, STATE OF NEW YORK
Attorney for Defendants
CHRISTOPHER L. BOYD,
DANIEL RYAN MAGUIRE, and
JOEL J. TERRAGNOLI
Assistant Attorneys General, of Counsel
Main Place Tower
Suite 300A
350 Main Street
Buffalo, New York 14202
JURISDICTION
This case was referred to the undersigned by Honorable Lawrence J. Vilardo on
June 14, 2017, for all non-dispositive pretrial matters (Dkt. 12). On September 11,
2018, District Judge Vilardo further referred the matter to the undersigned for
preparation of a report and recommendation on dispositive motions (Dkt. 28). The
matter is presently before the court on Defendants’ motions to quash subpoenas filed
February 1, 2023 (Dkt, 60), and to strike expert reports filed February 6, 2023 (Dkt. 62).
BACKGROUND and FACTS1
On November 10, 2016, Plaintiff Laurie Ann Smith (“Plaintiff” or “Smith”), as
Administratrix of the Estate of Thomas E. Blancke, Sr., deceased (“the Deceased” or
“Blancke”), commenced this action alleging civil rights violations by Defendants Adrian
Baugh, George Brown, and Michael Woodard (together, “Defendants”), all correction
officers employed by New York State Department of Corrections and Community
Supervision (“DOCCS”), in connection with Decedent’s death at Five Points
Correctional Facility (“Five Points” or “the correctional facility”), on December 14, 2013.
Plaintiff particularly alleges that the Decedent, a non-violent convict with mental
impairments including a bipolar disorder and ADHD, was housed in isolation in the
correctional facility’s special housing unit (“SHU”) in Cell 23 (“Cell 23”), when, after
being denied his psychiatric medications, Blancke became a ‘difficult’ inmate. Cell 23
was a double-occupancy cell but Blancke was the only occupant when initially placed
there. According to Plaintiff, on December 13, 2013, one Brian J. Karris (“Karris”), who
1 The Facts are taken from the pleadings and motion papers filed in this action.
was incarcerated at Five Points on a conviction of second degree assault and a hate
crime against an African American male, was placed in SHU in Cell 23 with Plaintiff.
Plaintiff maintains Defendants anticipated Karris would physically assault Plaintiff, yet
took no steps to protect Plaintiff. In the early morning hours of December 14, 2013,
sounds consistent with a physical assault emanated from Cell 23 (“the assault”), yet
Defendants made no attempt to investigate or to check on Plaintiff’s welfare. Karris
eventually called for medical assistance for Plaintiff to which Braugh responded.
Plaintiff died twenty minutes later. On November 20, 2015, Karris was convicted on
second degree murder for the assault and death of Blancke. Defendants filed their
answer on June 14, 2017 (Dkt. 11).
Pursuant to this court’s original Scheduling Order filed August 9, 2017 (Dkt. 16)
(“original Scheduling Order”), relevant to the instant motions, fact discovery was to
conclude August 9, 2018, and Plaintiff was to disclose expert witnesses through
interrogatories and provide expert reports by August 23, 2018. On September 7, 2018,
Defendants moved for summary judgment. (Dkt. 27) (“Defendants’ summary judgment
motion”). While Defendants’ summary judgment motion was pending, Plaintiff, by letter
to the court dated December 13, 2019 (Dkt. 34) (“December 13, 2019 Letter”),
requested permission to submit an additional exhibit in opposition to Defendants’
summary judgment motion specifically, the redacted Final Report of the New York State
Commission of Correction in the Matter of the Death of Thomas Blancke date June 27,
2017 (“Final Report”) (Dkt. 34-1), that Plaintiff had recently received from the New York
State Attorney General’s Office in a related case pending in the New York Court of
Claims, Smith v. State of New York, (“state court case”). Plaintiff further asserted that
because the Final Report was “directly responsive” to Plaintiff’s initial documents, the
Final Report should have been produced within 30 days of Defendants’ receipt of
Plaintiff’s initial document demands, i.e., September 22, 2017. December 13, 2019
Letter at 2. On December 17, 2017, Plaintiff moved to withdraw her opposition to
Defendants’ summary judgment motion, asserting the Final Report raises additional
material facts for which further discovery, including depositions, was needed. In a
Decision and Order filed January 28, 2022 (Dkt. 39) (“January 28, 2022 D&O”),
Plaintiff’s request to reopen discovery was granted and Defendants’ summary judgment
motion was dismissed without prejudice to refiling upon completion of discovery. An
Amended Scheduling Order filed January 28, 2022 (Dkt. 40) (“First Amended
Scheduling Order”), extended the deadline for the completion of fact discovery to May
31, 2022, but did not extend the deadline for expert disclosure or reports. On February
7, 2022, Defendants filed objections to the January 28, 2022 D&O (Dkt. 41). On April 6,
2022, Plaintiff and Defendants jointly moved to stay the First Amended Scheduling
Order pending the District Judge’s decision on Defendants’ objections to the January
28, 2022 D&O (Dkt. 48), and the request was granted by Text Order entered April 7,
2022 (Dkt. 49). On October 28, 2022, the District Judge affirmed the January 28, 2022
D&O (Dkt. 51).
On November 1, 2022, the Plaintiff and Defendants together filed a letter (Dkt.
52) (”November 1, 2022 Letter”), jointly requesting a new scheduling order permitting
Plaintiff to conduct the discovery contemplated by the First Amended Scheduling Order
which was held in abeyance pending resolution of Defendants’ objections to the
undersigned’s January 28, 2022 R&R. The parties specifically request that they be
“allowed until January 22, 2023 to complete fact discovery and February 27, 2023, to
complete expert discovery.” November 1, 2022 Letter. Accordingly, a Second
Amended Scheduling Order filed November 2, 2022 (Dkt. 55) (“Second Amended
Scheduling Order”), extended the deadlines for the completion of fact discovery to
January 22, 2023, and for “[a]ll expert discovery” to February 27, 2023.
By letter to the Clerk of Court for the Western District of New York, filed and
dated January 20, 2023 (Dkt. 58) (“January 20, 2023 Letter”), Plaintiff requested the
Clerk of Court review and execute the attached subpoenas (Dkt. 58-1) (“the
subpoenas”) to New York City Office of Mental Health (“OMH”), for certified copies of
Karris’s mental health records for a period of three years prior to the assault (“OMH
Subpoena”), and to NYS Commission of Correction (“the Commission”) for an
unredacted copy of the Final Report (“Commission Subpoena”). On January 26, 2023,
Plaintiff filed a notice of subpoena indicating Plaintiff intended to serve OMH and the
Commission Subpoenas. (Dkt. 59) (“subpoena notice”). The copies of the
electronically filed subpoenas bear date stamps indicating they were signed and issued
by the Clerk of Court on January 23, 2023.
On February 1, 2023, Defendants moved to quash the subpoenas (Dkt. 60)
(“Motion to Quash”), attaching the Memorandum of Law in Support of Motion to Quash
Subpoenas (Dkt. 60-1) (“Defendants’ Memorandum – Quash”). On February 7, 2023,
Plaintiff filed Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to
Quash Subpoenas (Dkt. 63) (“Plaintiff’s Response – Quash”), attaching exhibits A
through M (Dkts. 63-1 through 63-13) (“Plaintiff’s Exh(s). __ - Motion to Quash”). On
February 10, 2023, Defendants filed the Reply Memorandum of Law in Support of
Motion to Quash Subpoenas (Dkt. 65) (“Defendants’ Reply – Quash”). The Commission
has not objected to the Plaintiff’s subpoena; instead, the Commission stated it will
comply with the determination of this court. See Plaintiff’s Exh. M – Motion to Quash
(Dkt. 63-13) at 2 (January 31, 2023 Letter from Commission of Correction to Plaintiff’s
Attorneys advising the Commission is in receipt of the Commission Subpoena and has
no objection to disclosure should the court order the unredacted Final Report be
produced).
On February 1, 2023, Plaintiff served the expert disclosures for Evan Cohen,
M.D. (“Dr. Cohen”), and Will Adams (“Adams”). On February 6, 2023, Defendants
moved to strike as untimely the Plaintiff’s expert reports (Dkt. 62) (“Motion to Strike”),
attaching the Declaration of Daniel R. Maguire, Esq. (Dkt. 62-1) (“Maguire Declaration”),
attaching exhibits A through I (Dkts. 62-2 through 62-10) (“Defendants’ Exh(s). __”), and
the Memorandum of Law in Support of Motion to Strike Expert Reports and Exclude
Testimony (Dkt. 62-11) (“Defendants’ Memorandum – Strike”). On February 10, 2023,
Plaintiff filed Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to
Strike Experts (Dkt. 66), attaching exhibits 1 through 8 (Dkts. 66-1 through 66-9)
(“Plaintiff’s Exh(s). __ - Motion to Strike”). Later on February 10, 2023, Plaintiff filed a
corrected Memorandum of Law in Opposition to Defendants’ Motion to Strike Experts
(Dkt. 67) (“Plaintiff’s Response – Strike”).2 On February 15, 2023, Defendants filed the
Reply Memorandum of Law in Support of Motion to Strike Expert Reports and Exclude
Testimony (Dkt. 68) (“Defendants’ Reply – Strike”).
2 Although no difference between Dkt. 66 and Dkt. 67, because Plaintiff refers to Dkt. 67 as “corrected,”
the court considers Dkt. 67 in analyzing Defendants’ Motion to Strike.
Oral argument was deemed unnecessary. Based on the following, Defendants’
Motion to Quash is DENIED; Defendants’ Motion to Strike is DENIED.
DISCUSSION
Defendants move to quash the subpoenas as issued after the deadline for fact
discovery and to strike Plaintiff’s expert witness reports because Plaintiff failed to timely
disclose the experts.
1. Motion to Quash
Defendants argue that the Commission Subpoena3 should be quashed because
Plaintiff knew about the Final Report upon receiving, prior to December 13, 2019, the
redacted copy of the Final Report, but Plaintiff’s issuance of the subpoenas on January
23, 2023, was after the discovery deadline of January 22, 2023. Defendants’
Memorandum – Quash at 2-4. In opposition, Plaintiff explains that because the Second
Amended Scheduling Order establishes February 27, 2023 as the deadline for expert
discovery, which would include the depositions of experts and their reports, and
because Plaintiff’s experts had requested an unredacted copy of the Final Report to
complete their expert reports, Plaintiff’s request that the Clerk of Court issue the
Commission Subpoena was made in connection with expert discovery rather than fact
discovery. Plaintiff’s Response – Quash at 2-3. Plaintiff further explains that it was on
January 20, 2023, two days before the January 22, 2023 fact discovery deadline that
Plaintiff requested the Clerk of Court to issue the signed Commission Subpoena, but
that January 22, 2023 was a Sunday and, as such, the Clerk of Court could not and did
3 Plaintiff states, and Defendants do not dispute, that OMH has fully complied with the OMH Subpoena.
Plaintiff’s Response – Quash at 4. Accordingly, the court addresses only the Commission Subpoena.
not sign and issue the Commission’s Subpoena until January 23, 2023. Id. at 3-4.
Plaintiff also argues Defendants, as party litigants, do not have standing to object to a
subpoena served on a nonparty witness, in this case, the Commission, Plaintiff’s
Response – Quash, at 5-6, the unredacted Final Report is discoverable, id. at 6-7, and
that Defendants have failed to establish a basis for quashing the Commission
Subpoena. Id. at 7. In further support of quashing the Commission Subpoena,
Defendants argue they have standing to enforce the Second Amended Scheduling
Order which includes the deadline for fact discovery, Defendants’ Reply – Quash at 2,
and newly assert Plaintiff violated the Second Amended Scheduling Order by “serving”
the Commission Subpoena after the close of fact discovery on January 22, 2023. Id. at
2-3. Defendants do not contend the unredacted Final Report is not otherwise subject to
discovery. Defendants’ Motion to Quash is without merit.
Preliminarily, Defendants’ Motion to Quash should be denied because
Defendants, as party litigants, do not have standing to quash the Commission
Subpoena served on a nonparty. In particular, “‘[i]n the absence of a claim of privilege a
party usually does not have standing to object to a subpoena directed to a nonparty
witness.’” Woodward v. Afify, 2017 WL 278555, at * 7 (W.D.N.Y. Jan. 23, 2017)
(quoting Langford v. Chrysler Motors Corp., 513 F.3d 1126, 1126 (2d Cir. 1975) (citing
5A J. Moore, Federal Practice P. 45.05(a) (2d ed. 1974))). Here, Defendants do not
claim any privilege supporting Defendants’ standing to quash the Commission
Subpoena, and the cases on which Defendants rely are inapposite.
In particular, Defendants rely on Ferrer v. Racette, 2017 WL 1750377 (N.D.N.Y.
May 4, 2017) (“Ferrer”) for the proposition that because the issues of standing and
timeliness are distinct from each other, the late service of the subpoena is an
independent basis for quashing a subpoena. Defendants’ Reply at 2. The subpoena at
issue in Ferrer, however, was issued on March 16, 2017, more than two weeks after the
February 28, 2017 discovery deadline, and was not served until March 22, 2017.
Ferrer, 2017 WL 1750377, at * 2. In contrast, in the instant case, although the
Commission Subpoena was issued on January 23, 2023, it was presented to the Clerk
of Court on January 20, 2023, prior to the January 22, 2023 discovery deadline.
Defendants also rely on McKay v. Triborough Bridge and Tunnel Authority, 2007 WL
3275918 (S.D.N.Y. Nov. 5, 2007) (“McKay”). Defendants’ Memorandum – Quash at 3;
Defendants’ Reply – Quash at 2. Significantly, in McKay, the defendants served a
subpoena, issued after the close of discovery, on the plaintiff’s employer more than five
months after discovery closed. McKay, 2007 WL 3275918, at * 2. Further, in both
Ferrer, and McKay, the subject subpoenas were issued by attorneys, rather than by the
court. See Ferrer, 2017 WL 1750377, at *1 (subpoena sought to be quashed as
untimely issued was issued by attorney); McKay, 2007 WL 3275918, at *2 (stating the
“Defendants issued the subpoena to the [defendant]” despite the fact that discovery had
closed almost five months earlier). Accordingly, neither Ferrer nor McKay supports
Defendants’ argument that the untimely issuance of the Commission Subpoena by the
Clerk of Court renders irrelevant whether Defendants have standing to quash such
subpoena.
As to the timeliness of the Commission Subpoena, Fed.R.Civ.P. 45 (“Rule
45__”) requires a subpoena commanding the production of, as relevant here, an
unredacted copy of the Final Report “must issue from the court where the action is
pending,” Rule 45(a)(2), by the Clerk of the Court, Rule 45(a)(3).4 Here, the Docket
establishes, as Plaintiff asserts, that Plaintiff provided the Commission Subpoena for the
Clerk of Court’s signature on January 20, 2022. Dkt. 58. The Clerk of Court, however,
did not sign and issue the Commission Subpoena until January 23, 2023, i.e., the day
after the January 22, 2023 deadline, established by the Second Amended Scheduling
Order, for fact discovery. Nevertheless, because January 22, 2023 was a Sunday and
the Clerk’s Office thus inaccessible, the deadline for filing and thus issuance of the
subpoena was extended to January 23, 2023 by operation of Fed.R.Civ.P. 6(a)(3)(A)
(providing that when the clerk’s office is inaccessible and the time for filing is computed
as of a specific date, “the time for filing is extended to the first accessible day that is not
a Saturday, Sunday, or legal holiday . . . .”) (“Rule 6(a)(3)(A)”). Relevantly, courts refer
to a prohibition against the issuance of a subpoena by a party after the discovery
deadline has passed, thereby implying a subpoena may issue by the court up to the
discovery deadline. See, e.g., Dodson v. CBS Broadcasting, Inc., 2005 WL 3177723, at
* 1 (S.D.N.Y. 2005) (citing cases and 9 Moore's Federal Practice, § 45.02 (Matthew
Bender 3d ed. 2005) (“Several courts have concluded that after the discovery deadline
a party may not use a subpoena to obtain materials from third parties that could have
been produced during discovery.”)). Here, based on the application of Rule 6(a)(3)(A),
the subpoena was timely issued, i.e., on January 23, 2023, and thus was compliant with
the January 23, 2023 deadline for serving discovery requests. Defendants’ further
argument that the Commission Subpoena should be quashed because it requests the
4 The court notes Rule 45(a)(3) also permits an attorney who is authorized to practice in the issuing court
to issue and sign a subpoena. It is not clear why, despite being admitted to practice in this court, neither
of Plaintiff’s attorneys issued and signed the Commission Subpoena.
Commission provide the unredacted Final Report by February 3, 2023, which is after
the close of fact discovery, Defendants’ Reply at 3, must be rejected given Defendants
lack standing to raise the issue. Moreover, Defendants’ argument overlooks the fact
that if the Commission’s response to the Commission Subpoena were subject to the
Second Amended Scheduling Order, then Plaintiff acted at her peril in serving the
Commission Subpoena so close to the fact discovery deadline because the January 7,
2023 deadline for motions to compel established by the Second Amended Scheduling
Order had already elapsed. Accordingly, Defendants’ Motion to Quash should be
DENIED as to Defendants’ argument that the Commission Subpoena was not timely
issued.
2. Motion to Strike
It is undisputed that Plaintiff never identified any experts in response to
interrogatories served by Defendants, particularly Interrogatory No. 5 demanding
Plaintiff “[i]dentify all expert witnesses plaintiff expects to call at the trial of this action,”
responding instead that “Plaintiff has yet to retain an expert in this matter. If Plaintiff
retains an expert, she will do so pursuant to this Court’s scheduling Order dated August
9, 2017 and will comply with her discovery obligations pursuant to the Federal Rules of
Civil Procedure.” Plaintiff’s Response to Defendants’ First Set on Interrogatories,
Response 5 (Dkt. 62-4 at 4). In support of their Motion to Strike, Defendants argue that
although the Second Amended Scheduling Order extended to February 27, 2023, the
deadline for expert discovery, because Plaintiff failed “to identify any expert witnesses
through interrogatories,” as required by the original Scheduling Order, Plaintiff may not
now serve expert reports unless Plaintiff establishes her failure to comply was both
justified and harmless. Defendants’ Memorandum – Strike at 4-7. In opposition,
Plaintiff argues the Second Amended Scheduling Order’s reference to “all expert
discovery” is broad enough to include both disclosure of experts as well as expert
reports and any other related discovery such as depositions of expert witnesses,
Plaintiff’s Response – Strike at 7-8, and Defendants’ argument that the original
Scheduling Order’s reference to identifying expert witnesses through interrogatories is
“frivolous” is without merit given the original Scheduling Order has been amended twice
with the Second Amended Scheduling Order providing a deadline for “all expert
discovery.” Id. at 8-9. Plaintiff further maintains that because she previously indicated
to the court her desire to engage in expert discovery to oppose Defendants’ summary
judgment motion, which was filed on September 7, 2018, after Plaintiff responded to
Defendants’ interrogatories on November 27, 2017, and moved with Defendants’
consent to amend the First Amended Scheduling Order to allow for extending the
deadline for “all expert discovery” to February 27, 2023, Defendants cannot claim to
have been surprised by Plaintiff’s belated decision to engage experts. Id. at 9
(underlining added). In reply, Defendants essentially reiterate their arguments originally
asserted in support of the Motion to Strike. Defendants’ Reply – Strike, passim.
Although it is generally the undersigned’s practice to provide separate dates for
the designation of expert witnesses and the filing of expert reports, the court is not privy
to discovery responses where the parties are represented by counsel. The court thus
relied on the parties’ representations made in the November 1, 2022 Letter in issuing
the Second Amended Scheduling Order. As Defendants observe, Plaintiff never
identified any experts in response to Defendants’ interrogatories nor supplemented their
responses. Nevertheless, Defendants jointly requested the Second Amended
Scheduling Order which provided for the February 27, 2023 deadline for “all expert
discovery.” Accordingly, Defendants cannot now claim they were unaware that by
agreeing to the inclusion of a new date for the conclusion of “all expert discovery” in the
Second Amended Scheduling Order, which did not provide separate dates for
designating expert witnesses and the provision of expert reports, they did not anticipate
that Plaintiff would provide reports from previously undisclosed expert witnesses. To
hold otherwise would render the Second Amended Scheduling Order superfluous,
which the court is to avoid. See Automotive Lift Institute, Inc. v. Backyard Buddy, Inc.,
2010 WL 11681593, at * 3 (N.D.N.Y. May 20, 2010) (declining to construe court’s order
in a manner that was redundant or superfluous). Accordingly, Defendants’ Motion to
Strike is DENIED.
CONCLUSION
Based on the foregoing, Defendants’ Motion to Quash (Dkt. 60), is DENIED;
Defendants’ Motion to Strike (Dkt. 62), is DENIED.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: April 4, 2023
Buffalo, New York