The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
SANJAY TRIPATHY,
DECISION & ORDER
Plaintiff,
21-CV-6392FPG
v.
ANDREA N. SCHNEIDER,
Acting Superintendent, Gowanda CF,
Gowanda NY, et al.,
Defendants.
_______________________________________
On June 21, 2024, this Court issued a Decision & Order addressing numerous
discovery disputes.1 (Docket # 184). In that decision, the Court directed, in relevant part, that
defendants “search for and produce all Covid-19-related [Inmate Liaison Committee (“ILC”)]
briefings distributed at the relevant facilities during the time periods requested by Tripathy.” (Id.
at 13).
By declaration dated July 23, 2024, defendants submitted the declaration of
Megan Yaiser, the Assistant Commissioner for the Health Services for the New York State
Department of Corrections and Community Supervision (“DOCCS”). (Docket # 188). In her
declaration, Yaiser represented that during the relevant time period, DOCCS did not distribute
any written briefings related to Covid-19 to ILC members. (Id. at 6, ¶ 5).
Approximately three hours later, Tripathy filed a motion to compel, maintaining
that Yaiser made false representations in her declaration. (Docket # 189). According to
1 This decision assumes familiarity with that decision, the various issues it addresses, and the procedural
history on this litigation.
Tripathy, during his incarceration he reviewed minutes of ILC meetings posted on dorm notice
boards. (Id.). Tripathy maintains that these minutes referenced Covid-19-related information
that had been verbally disseminated to dorm representatives by DOCCS staff. (Id.). He requests
an order compelling defendants to either produce these meeting minutes or to provide a
declaration representing that such minutes do not exist. (Id.).
Tripathy’s motion is denied. As this Court previously advised Tripathy (see, e.g.,
Docket # 133 at 5), the applicable rules of civil procedure require the parties to confer or attempt
to confer in good faith to try to resolve discovery disputes without court intervention before
filing a motion to compel. Fed. R. Civ. P. 37(a)(1). To verify that the requirement has been
satisfied, Rule 37(a)(1) obligates a party filing a motion to compel to “include a certification”
that the movant has in good faith conferred or attempted to confer with the opposing party or
counsel. Fed. R. Civ. P. 37(a)(1). Tripathy’s motion does not include the required certification,
which is not surprising considering he filed the pending motion within hours of defendants’
submission. The failure to meet and confer warrants denial of Tripathy’s motion. See Williams
v. City of Rochester, 2018 WL 739097, *1 (W.D.N.Y. 2018) (“[t]he failure to meet and confer is
unacceptable, contravenes the parties’ obligations under the Federal Rules of Civil Procedure,
and justifies the denial of [plaintiff’s] motion”).
Although defendants represent that DOCCS staff did not distribute any written
Covid-19-related briefings to the ILC members, Tripathy maintains that he reviewed written ILC
meeting minutes that reflected the content of the verbal briefings provided by DOCCS staff to
the ILC members. Accordingly, the parties are directed to confer regarding whether such
meeting minutes exist for the relevant facilities during the relevant time periods and, if so,
whether those minutes are in the possession of DOCCS.
For the reasons stated above, Tripathy’s motion to compel (Docket # 189) is
DENIED.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
July 24, 2024