The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TWIN BRIDGES WASTE AND RECYCLING,
LLC,
Plaintiff,
V. 1:21-CV-0263
(DNH/DJS)
COUNTY WASTE AND RECYCLING SERVICE,
INC, et al.,
Defendants.
APPEARANCES: OF COUNSEL:
DREYER BOYAJIAN, LLP DONALD W. BOYAJIAN, ESQ.
Attorneys for Plaintiff JAMES R. PELUSO, ESQ.
75 Columbia Street
Albany, New York 12207
BOIES, SCHILLER & FLEXNER LLP ADAM SHAW, ESQ.
Attorneys for Plaintiff
30 South Pearl Street, 11 Floor
Albany, New York 12207
NIXON PEABODY, LLP WILLIAM E. REYNOLDS, ESQ.
Attorneys for Defendants KELLY A. SPRAGUE, ESQ.
677 Broadway, 10“ Floor
Albany, New York 12207
DANIEL J. STEWART
United States Magistrate Judge
DISCOVERY ORDER
A further Discovery Conference was held in this matter on August 21, 2024.
Several of the outstanding issues in the case had been resolved prior to the conference.
See Dkt. No 182 (dealing with the privilege logs) & Dkt. No. 178 (dealing with expert
witness protocol). In addition, during the conference counsel for the parties explained
the significant number of depositions that have been completed to date, and their
continued efforts to resolve discovery disputes amongst themselves. The Court is
appreciative of those efforts. Based upon the information provided during that
conference, the Court issues the following Discovery Order:
I. Scheduling Order. For good cause shown, the Court revises the Uniform
Pretrial Scheduling Order one additional time. The new deadlines are as follows:
Event Deadline
Completion of Fact Discovery | November 22, 2023
Plaintiff's Expert Report December 7, 2024
Defendants’ Expert Report January 21, 2025
Rebuttal Experts February 15, 2025
Mediation Deadline February 15, 2025
Expert Depositions March 18, 2025
Dispositive Motions April 29, 2025
II. Witness Identification. Plaintiff's counsel has requested that the Court
direct Defendants’ counsel to identify any witness that they anticipate calling at trial, or
whom they may rely upon in connection with any yet to be filed summary judgment
motion. Defendants object, noting that there is no provision requiring the identification
of their motion affiants prior to the filing of such a motion, and, generally, witness lists
are due no more than 30 days prior to trial. Dkt. No. 181. At the hearing, Defense
counsel noted that they would work with counsel for Twin Bridges and provide
identification and statements from customers insofar as they had them. Plaintiffs
counsel notes that they have received statements from County Waste customers that
were approached, but who did not switch services, and they were specifically interested
the identification of consumers who changed from one company to the other.
Defendants indicate that some of that information has been included in the large amount
of data provided, but that they do not have any more specific information. The Court
denies Plaintiff's request for production of a witness list or exhibit list at this time; any
such requirement will be part of the Trial Court’s yet-to-be-issued pre-trial order. The
Court notes and reminds counsel, however, that Rule 26(a)(1)(A)(1) requires the parties
“| to identify individuals who may have discoverable information relating to the parties
claims or defenses 1f that information is known. The parties are obligated to supplement
those initial disclosures as additional witnesses and evidence become known. /d. Under
Fed. R. Civ. P. 37(c), “[i]f.a party fails to ... identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that ... witness to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
Kullman v. New York, 2009 WL 1562840, at *8 (N.D.N.Y. May 20, 2009).
Il. De-designation of “Attorney’s Eyes Only” classifications. Finally,
Plaintiffs counsel has objected to the fact that all the documents produced by
Defendants have been designated “Attorney’s Eyes-Only” which, under the Protective
Order, is the highest level of classification. As a result, they are unable to show even
their clients most of the discovery that has been provided. Candidly, counsel for the
Plaintiff acknowledges that they themselves designated nearly one hundred percent of
their documents as being “Attorneys-Eyes Only.” There is no question in the Court’s
view that over designation likely occurred. Generally, there is no basis to designate the
4) party’s entire production as highly confidential, and that classification can only be made
after good faith determination by counsel that there is legitimate basis for the
confidentiality designation for each document or set of documents. See United States v.
Mount Sinai Hosp., 185 F. Supp. 3d 383, 396 (S.D.N.Y. 2016). Looking at the situation
in its best light, the Court could glean that these designations were made at the onset
because of the deep-seated distrust that each party has for each other, and such a
designation would at least get the discovery process going by allowing the attorneys to
view the documentation.
The Court will resolve this matter under a two-step approach. First, each counsel
is immediately required to review and reconsider its classification designations under
the Protective Order to assure that it has complied with its obligation to only exercise
this designation in good faith and with justification. In conjunction with that, the party
who opposes the designation of the document as “Attorneys Eyes-Only” should serve
upon the other side a written request identifying the documents or materials that it
believes should be declassified pursuant to paragraph 4 of the Stipulation and Order for
the Production and Exchange of Confidential Information, signed by this Court on May
18, 2022. Dkt. No. 38. That process should be completed within 21 days of the date
of this Order. In the event that a dispute remains, counsel are authorized to file a motion
for declassification.
IV. Ongoing Document Disclosure. The parties have also raised issued
concerning the scope of document disclosure. The filings of the parties suggest that
further discussion between them is warranted on this issue and Plaintiff's counsel is
directed to file a status report on this issue within 30 days of the date of this Order.
IT IS SO ORDERED.
Dated: August 28, 2024
Albany, New York
Da el J. Ste art)”
U.S™“Magistrate Judge