Williams v. NYC Board of Elections

DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT | cee |

SOUTHERN DISTRICT OF NEW YORK DATE FILED:_ 3/19/2024

CARMAN WILLIAMS,

Plaintiff DISCOVERY ORDER

-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 Plaintiff

Carman Williams. The Court addresses these discovery issues below.

MOTION TO COMPEL

On June 20, 2024, the Court issued a discovery Order stating that to the extent there

were specific interrogatories Plaintiff served on Defendants that did not involve topics the

Court already ruled on in its May 13, 2024 Order, Plaintiff could file a motion by July 3, 2024 to

compel responses. (ECF No. 104.) On July 4, 2024, Plaintiff filed a letter seeking an extension

on the deadline to file the motion to compel, which the Court granted even though it was late.

In granting that request, the Court reiterated that Plaintiff's motion should not involve

interrogatories concerning topics/requests that the Court already ruled on in its May 13, 2024

Order. (ECF No. 118.)

On July 17, 2024, Plaintiff filed a motion to compel discovery responses to

interrogatories and document requests directed to individual Defendant Hemalee Patel, who is

also the New York City Board of Elections’ General Counsel (the “Motion”). (ECF No. 130.)

Plaintiff asserts that she served Ms. Patel with interrogatories and document requests on April

24, 2024, (the “April 24 Interrogatories and Requests”) but Defendants never responded. In

addition to seeking responses to her requests, Plaintiff also seeks the sanction of her costs in

having to move to compel Defendants for failing to provide responses, and an order precluding

Defendants from objecting to the interrogatories and document requests served on Patel. On

August 6, 2024, Defendants responded to the Motion asserting that they believed they did not

need to respond to the April 24 Interrogatories and Requests because they are duplicative of

prior requests the Court had ruled on. (ECF No. 149.)

Rule 37(a) permits a party to move for an order compelling disclosure or discovery and

must be accompanied by a certification that the movant has in good faith attempted to confer

with the other party in an effort to obtain the discovery without resort to a motion. Fed. R. Civ.

P.37(a)(1). The Rule can be invoked for failure to answer deposition questions, answer

interrogatories, produce documents, provide initial disclosures and also for evasive or

incomplete disclosures or production. Fed. R. Civ. P. 37(a)(3-4). It also provides for imposition

of sanctions for discovery misconduct. See generally Update Art, Inc. v. Modiin Publ’g, Ltd., 843

F.2d 67, 71 (2d Cir. 1988).

If a Rule 37(a) motion is denied, the Court may issue any protective order authorized

under Rule 26(c) and must, after giving an opportunity to be heard, require the movant to pay

the party who opposed the motion its reasonable expenses incurred in opposing the motion,

including attorney’s fees, unless the motion was substantially justified or other circumstances

make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(B). This aspect of the rule

discourages filing of frivolous or unwarranted motions. If a Rule 37(a) motion is granted,

the court similarly must order the party whose conduct necessitated the motion to pay the

movant’s reasonable expenses incurred in bringing the motion, including attorney’s fees, unless

the movant filed the motion without first conferring in good faith to resolve the matter, the

opposing party’s nondisclosure, response or objection was substantially justified, or other

circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). This aspect of the

rule similarly encourages compliance with discovery rules and cooperation of the parties.

The party who moves to compel has the burden of demonstrating the discovery it seeks

is relevant to the claims and defenses in the action. See Go New York Tours, Inc. v. Aurora

Tourism Services, LLC, No. 22-cv-10633 (DEH) (JW), 2023 WL 9111158, at *1 (S.D.N.Y. Dec. 20,

2023) (citing Trilegiant Corp. v. Sitel Corp., 272 F.R.D. 360, 363 (S.D.N.Y. 2010)); see also Fed. R.

Civ. P. 26(b)(1)( “[p]arties may obtain discovery regarding any nonprivileged matter that is

relevant to any party's claim or defense and proportional to the needs of the case[.]”).

However, even if the discovery sought is relevant, the court may limit discovery if, among other

things, the discovery sought is unreasonably cumulative or duplicative. Fed. R. Civ. P.

26(b)(2)(C). Finally, Magistrate Judges are afforded “broad discretion” with regard to managing

discovery, which includes limiting discovery to ensure that it is proportional to the needs of the

case. Sali v. Zwanger & Pesiri Radiology Grp., LLP, No. 2:19-CV-00275-FB-CLP, 2022 WL 819178,

at *1 (E.D.N.Y. Mar. 18, 2022); Fed. R. Civ. P. 1, 26(b)(2).

Plaintiff’s April 24, 2024 Interrogatories and Requests contain the following questions

and requests:

1. Do you have any first-hand personal knowledge of Plaintiff’s work performance and/or

conduct?

2. If so, where and when did you personally observe Plaintiff’s work performance and/or

conduct?

3. Name the individuals and provide their job titles who were the source of the hearsay

statements included in your Narrative Response to the NYSDHR Complaint No.

10217709.

4. Provide the means by which the information was conveyed to you by the parties named

in #3 and produce copies of the materials provided to you.

5. Are those individuals still employed by the Board of Elections? If not, when and under

what circumstances did they leave BOE?

6. By whom are coordinator journals reviewed and what is the procedure for logging

and/or investigating any alleged issues raise vis-à-vis Poll Workers?

7. Was the Plaintiff ever subjected to any disciplinary action by the Board from the start of

her employment with BOE in 2008 through May 31, 2022? Produce any documents that

indicate Plaintiff was disciplined and/or reprimanded during that time frame.

8. Did you receive a copy of the May 31, 2022 email Plaintiff sent to Debra Leible regarding

Donna Ellaby? Produce the document in ESI form with meta-deta.

9. Did you forward the email to any other BOE employees including BOE Commissioners?

Produce copies – hard and electronic – of any emails forwarded by you.

10.Are Freedom of Information Law Requests legal under NYS Law?

11.What expertise do you have with regard to ascertaining a person’s motives for seeking

materials under the NYS Freedom of Information Law?

12.Have you ever been the subject of a discrimination complaint at any previous job or in

connection with your current position? Produce copies of documents – hard copies and

electronic – of any such complaints.

13.When and where did you ever have a conversation with Plaintiff regarding her

“motives” for requesting FOIL documents?

14.Did you receive any training in “implicit bias” and “racism” by the Board of Elections?

15.Does the Board of Elections conduct any such training?

16.Have you drafted any other Narrative Responses or Position Statements to any

administrative agencies in connection with racial discrimination and/or retaliations

complaints? Produce copies – hard and electronic – of any such documents.

17.Do you utilize any laptops or smartphones in connection with your job at the BOE?

18.Who is your cellphone provider and what is your phone number?

19.How many Poll Workers are currently active with BOE?

20.Do you use your personal email to send and/or receive email from the Board of

Elections?

21.Were you aware when you filed the Narrative Response that Plaintiff had been assigned

on two prior occasions to work Early Voting?

22.Were you aware of the Plaintiff’s educational background when you made the

accusations in your Narrative Statement response to the NYSDHR?

23.How often are Poll Workers evaluated by BOE and/or its agents/employees?

24.How many times has BOE conducted performance reviews of Plaintiff’s work

performance from 2008 through December 31, 2022? Produce copies – hard copies and

ESI with metadata intact – of any such “reviews” and/or “evaluations.”

25.What are the criteria for Poll Worker “evaluations”? Produce copies of the standardized

criteria (hard copies and electronic copies)?

The Honorable Arun Subramanian, the District Judge in this case, recently dismissed

Plaintiff’s libel claim against Hemalee Patel. (ECF No. 151). Many of Plaintiff’s interrogatories

appear to be related to that claim, as they are focused on statements made by Patel to the New

York State Division of Human Rights in response to Plaintiff’s administrative charge of

discrimination filed with that agency. Thus, to the extent they were relevant to that claim, they

no longer are relevant and need not be responded to. Further, to the extent Plaintiff seeks

communications Patel had with witnesses to prepare a legal response to Plaintiff’s

administrative charge, those communications would be protected by the work product

doctrine. See Fed. R. Civ. P. 26(b)(3)(A) (“Ordinarily, a party may not discover documents and

tangible things that are prepared in anticipation of litigation . . . by or for another party or its

representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or

agent[.]”); Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 73 (S.D.N.Y. 2010) (observing that work

product encompasses “an attorney's ‘interviews, statements, memoranda, correspondence,

briefs, [and] mental impressions’” and “factual material, including the result of a factual

investigation[.]”) (internal citations omitted). Some of the questions are simply improper

because they seek legal rather than factual information. The Court also notes that Plaintiff has

already received all documents and communications relating to her performance, the site

coordinator manual and any training materials received by coordinators in 2022, to the extent

such training materials exist, as well as the Employee Handbook applicable to BOE employees in

2022 and, thus, some of the questions are redundant of other requests that this Court has

already ruled on. Finally, Plaintiff provides no explanation as to why the specific

interrogatories/requests are relevant to her remaining claims and proportional to the needs of

the case given the discovery already provided. Accordingly, the Court rules as follows:

The following requests in the April 24 Interrogatories and Requests seek information

that is either duplicative of information Plaintiff has already received or duplicative of requests

the Court has already ruled on in its May 13, 2024 Order, and therefore, Defendants are not

required to respond: 7, 8, 15, and 24.

The following requests seek irrelevant information and are disproportionate to the

needs of the case, and therefore, Defendants are not required to respond: 5, 9, 11, 12, 13, 14,

17, 18, 19, and 20.

Request 10 seeks a legal conclusion, which is improper, and therefore, Defendants need

not respond.

Requests 3-4, 16, and 21-22, relate to Plaintiff’s libel claim against Hemalee Patel, which

was recently dismissed by Judge Subramanian (ECF No. 151), and therefore, such requests seek

irrelevant information that do not require a response from Defendants.

Although Plaintiff has not sufficiently explained why the remaining Requests are

relevant, the Court is familiar with the claims and in an abundance of solicitude to Plaintiff,

because she is proceeding pro se, will grant her limited additional discovery. Requests 1, 2, and

6 are contention interrogatories that seek relevant information about Plaintiff’s performance

and explanations concerning certain documents already produced that are discrete and not

redundant and thus proportional to the needs of the case. Additionally, although requests 23

and 25 are duplicative of prior document requests, Plaintiff styled these requests as contention

interrogatories and has not received sworn interrogatory responses. Further, they are relevant

to Plaintiff’s performance. Although the contention interrogatories arguably were not

consistent with Local Rule 33.3 when served, discovery is now complete but for the issues

addressed herein and at this stage in the litigation, the Court finds that it is appropriate to

require Defendants to answer five contention interrogatories to close out all remaining issues.

Accordingly, Plaintiff’s motion to compel is GRANTED as to requests 1, 2, 6, 23 and 25

insofar as the Court will permit them as contention interrogatories and require Defendants to

provide sworn responses to them. To the extent that Defendants have already produced

documents that respond to these requests, Defendants need only refer Plaintiff to the

responsive document(s). Defendants’ responses are due September 12, 2024.

Because Plaintiff’s motion was largely denied, the Court finds that sanctions, including in

the form of costs, are inappropriate here and therefore does not award any.

LETTERS REGARDING ESI

On July 30, 2024, Plaintiff filed a letter seeking additional discovery due to Defendants’

failure to disclose and/or supplement electronically stored information (“ESI”) and specifically

requests emails from or to other email addresses allegedly used by Defendants that end in

@evote.nyc. (ECF No. 144.) In that letter, Plaintiff also asserts that Defendants did not provide

her with a “redaction log,” but Plaintiff then attaches a privilege log provided by Defendants as

an exhibit.1 Plaintiff also states that Defendants have not searched “back up tapes” for deleted

emails and have not searched the ESI of an individual named Bryan Cambrelen. On August 1,

2024, Plaintiff filed a motion for sanctions due to Defendants’ failure to disclose ESI. (ECF No.

1 Plaintiff asserts that the emails Defendants redacted relate to Plaintiff’s Freedom of Information Law (“FOIL”)

requests that she filed with the Board of Elections in 2022, and that such emails should not be redacted. Based on

Defendants’ privilege log, it appears the emails concerned legal advice related to the FOIL requests, and would

therefore be protected by the attorney-client privilege.

147.) On August 9 and 11, 2024, Plaintiff filed further letters raising the same arguments

mentioned in her July 30th and August 1st letters, and also stating that she intends to take

depositions. (ECF Nos. 152-53.)

The Court has already ruled on Plaintiff’s requests for ESI multiples times. (See e.g., ECF

Nos. 104, 137.) For this reason, the Court construes Plaintiff’s letters asserting that sufficient

ESI has not been produced as motions for reconsideration.

Reconsideration is “an extraordinary remedy to be employed sparingly in the interests

of finality and conservation of scarce judicial resources.” In re Health Mgmt. Sys., Inc. Sec. Litig.,

113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (internal citation omitted). Local Civil Rule 6.3, which

governs reconsideration, aims to “prevent the practice of a losing party examining a decision

and then plugging the gaps of a lost motion with additional matters.’” SEC v. Ashbury Capital

Partners, L.P., No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001) (quoting

Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988)). Courts must “narrowly

construe and strictly apply Local Rule 6.3, so as to avoid duplicative rulings on previously

considered issues, and to prevent the rule from being used as a substitute for appealing a final

judgment.” Schoolcraft v. City of New York, 298 F.R.D. 134, 137 (S.D.N.Y. 2014). The Second

Circuit has held that the standard for granting a motion to reconsider “is strict, and

reconsideration will generally be denied unless the moving party can point to controlling

decisions or data that the court overlooked -- matters, in other words, that might reasonably be

expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d

255, 257 (2d Cir. 1995). Reconsideration is appropriate where the moving party demonstrates

“an intervening change of controlling law, the availability of new evidence, or the need to

correct a clear error or prevent manifest injustice.” Henderson v. Metro. Bank & Tr. Co., 502 F.

Supp. 2d 372, 376 (S.D.N.Y. 2007). A motion for reconsideration should be denied “where the

moving party seeks solely to relitigate an issue already decided.” Shrader, 70 F.3d at 257.

Here, Plaintiff has not pointed to controlling decisions or new evidence that the Court

overlooked in rendering its prior orders. Plaintiff also has not identified any clear error. Rather,

Plaintiff has simply asserted that Defendants have not provided “ESI” in this action. Plaintiff has

received responsive emails (which are ESI) in hard copy form that provide her with all relevant

information including author, recipient, cc’s and bcc’s (if any).2 Yet, Plaintiff continues to file

numerous letters requesting metadata, never stating what specific metadata elements she

seeks or what relevant information that she believes will be gleaned from the metadata of

responsive emails. Defendants have represented that Plaintiff has received all BOE

communications and documents that relate to her work performance and, therefore, Plaintiff’s

assertion that Defendants may also use other email addresses is irrelevant. The Court also

notes that the scorched-earth approach to discovery taken by Plaintiff is inconsistent with Rule

1. Accordingly, Plaintiff’s motions for reconsideration concerning the production of additional

ESI/metadata are DENIED.

As to Plaintiff’s assertion that Defendants have not searched “backup tapes,” the Court

first notes that Plaintiff relies on Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003), a

case from over 20 years ago, when completely different methods were used to store emails.

Further, in Zubulake, there was evidence that responsive, relevant emails had been deleted.

2 In a letter dated July 24, 2024, Defendants confirmed that their search of ESI found that no emails contained BCC

lines and therefore there were no emails to reproduce in electronic format. (ECF No. 136.)

See Zubulake, 220 F.R.D. at 215. Thus, Zubulake involved a dispute over whether the defendant

had to look for deleted emails in backup archives. Here, there is no evidence presented to

suggest Defendants have deleted or not retained relevant emails. Thus, Plaintiff’s request for

search of backup tapes is again DENIED. The Court will not entertain further motions

concerning ESI.

Plaintiff also asserts that Defendants have not searched the ESI of Bryan Cambrelen,

who was listed in Defendants’ Federal Rule of Civil Procedure 26 initial disclosures. Insofar as

Cambrelen was listed by Defendants as a person having relevant information, Defendants

should have searched for relevant documents from him. Defendants have not responded to

Plaintiff’s assertion about Cambrelen and the Court assumes his emails and texts were not

searched because his name was not among the custodians Defendants previously provided to

the Court as people whose ESI was searched. To the extent that Mr. Cambrelen’s emails and, if

applicable, text messages were not searched, Defendants are directed to search them with

Plaintiff’s name and correct poll worker number (221539) and produce any responsive

documents by September 12, 2024. By the same date, Defendants shall file a letter with the

Court confirming Defendants have complied with this Order.

AUGUST 2, 2024 LETTER

On August 2, 2024, Plaintiff filed another letter raising the same arguments discussed

above and also complaining that Defendants produced to Plaintiff “multiple emails on each

page[.]” (ECF No. 148.) Plaintiff has not described with specificity what the deficiencies are

with Defendants’ production and how such deficiencies impede Plaintiff’s ability to understand

the information contained in the emails. While Plaintiff is correct that parties should produce

documents in the manner in which such documents are ordinarily kept, it is routine for parties

to produce an entire chain of an email on the same page or pages, showing an email, the

response thereto, and further responses. Since Plaintiff did not include exhibits, the Court is

unable to discern from Plaintiff’s letter whether Defendants simply produced email chains,

which would not be improper, or included unrelated emails on the same page, and whether the

issue Plaintiff raises is one of form rather than substance. While Plaintiff states she attempted

to bring this topic to defense counsel’s attention, it is unclear to the Court whether the parties

have actually met and conferred on this issue. This is a matter that can easily be resolved and

should not require Court intervention. The important thing is that Plaintiff has relevant, legible

documents that she can use to prosecute her case. Accordingly, the parties shall meet and

confer on this issue. Accordingly, Plaintiff’s request that Defendants produce each email

individually is DENIED.

Plaintiff also asserts in the August 2, 2024 letter that Defendants never indicated

whether they searched the ESI of Donna Ellaby. This is incorrect. On July 5, 2024, Defendants

filed a letter confirming that Donna Ellaby’s ESI was searched in response to the Court’s May

13, 2024 Order and that Defendants mistakenly did not list Ms. Ellaby’s name in the list of

custodians that were searched. (ECF No. 115.)

REQUEST TO REOPEN DISCOVERY

In the letters dated August 2, 2024 and August 11, 2024, Plaintiff requests that the

discovery deadline be extended and states her desire to notice depositions. (ECF Nos. 148,

153.) On August 6, 2024, Defendants filed a letter requesting that discovery be re-closed and

that the parties be permitted to proceed to summary judgment motion practice. (ECF No. 149.)

To be clear, discovery closed on May 31, 2024, but was later reopened for the limited purposes

of Defendants reproducing emails that contained a bcc line (of which there were ultimately

none), and Plaintiff filing a motion to compel concerning particular interrogatories (as described

above). (See ECF Nos. 99, 104.) Thus, the Court construes Plaintiff’s letter seeking an extension

of the discovery deadline to be a motion to reopen discovery for other purposes, including

depositions.

“A district court has wide latitude to determine the scope of discovery.” In re Agent

Orange Prod. Liability Litig., 517 F.3d 76, 103 (2d Cir. 2008). District courts may limit discovery

if, among other reasons, they determine certain discovery sought is unreasonably cumulative or

duplicative, if the party seeking discovery already had ample opportunity to obtain the

information sought, if the discovery is disproportional to the case, or if the burden or expense

of the discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1-2). Importantly, under Rule

16(b), district courts are required to enter scheduling orders “that limit the parties’ time to

complete discovery.” McKay v. Triborough Bridge & Tunnel Auth., No. 05 Civ. 8936(RJS), 2007

WL 3275918, at *1 (S.D.N.Y. Nov. 5, 2007). Reopening discovery after the discovery period has

closed requires a showing of good cause. Eng–Hatcher v. Sprint Nextel Corp., No. 07 Civ. 7350

(BSJ)(KNF), 2008 WL 4104015, at *1 (S.D.N.Y. Aug. 28, 2008).

Here, Plaintiff has not provided good cause for reopening discovery, nor does she

explain why she did not notice depositions before discovery closed. Therefore, Plaintiff fails to

meet the standard for reopening discovery. Accordingly, Plaintiff’s request to reopen discovery

is DENIED and Defendants’ request to close discovery is GRANTED, except for the purpose of

Defendants complying with this Order. Plaintiff will not be permitted to depose individuals

months after discovery has closed. This Order is without prejudice to Plaintiff subpoenaing trial

witnesses of her choice.

The Court also notes that Plaintiff has filed numerous letters requesting discovery she

has already sought and received, while reasserting the same arguments over and over again.

Such duplicative filings waste judicial resources and cause undue burden and expense on the

parties that have to respond. Accordingly, any further discovery motions will be summarily

denied if they raise issues previously decided.

CONCLUSION

By September 12, 2024, Defendants shall provide Plaintiff with answers to

interrogatories 1, 2, 6, 23 and 25 from Plaintiff’s April 24, 2024 Interrogatories and Requests.

By that same date, Defendants shall also search Bryan Cambrelen’s ESI with Plaintiff’s name and

poll worker number (221539) and provide Plaintiff with responsive documents from such

search, if any, and file a letter with the Court confirming Defendants have complied with this

Order.

The parties are directed to comply with Judge Subramanian’s individual rules as to

summary judgment motion practice, which can be found at

https://www.nysd.uscourts.gov/sites/default/files/practice_documents/AS%20Subramanian%

20Civil%20Individual%20Practices_0.pdf. The summary judgment briefing schedule is as

follows: Defendants’ motion for summary judgment: October 18, 2024

Plaintiff’s opposition to motion: November 15, 2024

Defendants’ reply to motion: December 2, 2024

The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 130

and 149, and mail a copy of this Order to Plaintiff.

SO ORDERED.

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Dated: August 19, 2024 Kethaue H fe

New York, New York KATHARINE H. PARKER

United States Magistrate Judge