The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RAMONA PANDO WHITAKER
Plaintiff,
-v- 23-CV-669S(Sr)
CLINTON BROWN,
Defendant.
DECISION AND ORDER
This case was referred to the undersigned by the Hon. John L. Sinatra,
pursuant to 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon
dispositive motions. Dkt. #5.
Plaintiff’s complaint seeks a declaratory judgment that she is a joint author
of Olmstead’s Elmwood: the Rise, Decline and Renewal of Buffalo’s Parkway
Neighborhood, which was published in 2022 by Buffalo Heritage Press. Dkt. #1. Plaintiff
seeks an accounting and alleges that defendant has been unjustly enriched by his
retention of profits derived from the publication. Dkt. #1.
Defendant served a request for production of documents upon plaintiff’s
attorney in February of 2024 and subsequently requested that plaintiff respond to his
discovery demands prior to mediation, which was scheduled for May 23, 2024. Dkt.
#15-1, ¶¶ 3-4. Following numerous subsequent inquiries, plaintiff produced a USB drive
containing approximately 1700 pages of responsive documents on August 13, 2024.
Dkt. #15-1, ¶¶ 5-8 & Dkt. #17, ¶ 3.
By email dated August 15, 2024, defense counsel advised that he “did not
see any emails within the production” and inquired whether plaintiff possessed any
emails. Dkt. #15-12, p.1. Plaintiff’s counsel responded that she would ask plaintiff
“about emails.” Dkt. #15-12, p.1.
By email dated August 20, 2024, defense counsel inquired when he could
expect the emails. Dkt. #15-13, p.1.
Defense counsel inquired about the status of outstanding discovery on
August 28, 2024. Dkt. #15-13, p.1.
On September 9, 2024, defense counsel again inquired when plaintiff’s
counsel would “produce the requested emails.” Dkt. #15-14, p.1. Plaintiff’s counsel
responded:
I don’t know what you are asking for. I have produced to you
relevant materials.
Dkt. #15-14, p.1.
Defense counsel responded:
To refresh your recollection, I send along an email exchange
with you about your client’s photographs and emails. Despite
-2-
your assurance, you have never gotten back to me about my
request for emails.
Dkt. #15-15, p.1.
Currently before the Court is defendant’s motion to compel “the
production of the emails which have been sought since February.” Dkt. #15, ¶ 12..
Plaintiff responds that she produced documents on May 22, 2024 and
produced a USB drive containing approximately 1700 pages of responsive documents
on August 13, 2024. Dkt. #17, ¶ 3. In addition, counsel for plaintiff declares that she has
again asked Plaintiff to search her records for additional
materials, which may include emails that appear to be the
focus of Defendant’s current request. If there are more
materials located – in addition to the already produced
materials consisting of over 1700 pages of documents –
they will be produced.
Dkt. #17, ¶ 7.
Defendant replies:
It has now been nearly a year since defendant’s demand for
emails was served upon plaintiff’s counsel. . . . There has
been no claim by plaintiff that the emails sought are not
discoverable nor any justification for not providing the
emails, yet to date the sought after emails have not been
produced.
Dkt. #18, ¶ 3.
Defendant’s motion to compel is granted. Plaintiff shall produce any
additional documents in her possession, including any emails relevant to her claim,
within 10 days of the entry of this Decision and Order. Plaintiff is reminded that, absent
substantial justification, she will not be permitted to rely upon documents that were
requested but not produced. See Fed. R. Civ. P. 37(a)(a); See also Metro Found.
Contractors, Inc. v. Arch Ins. Co., 09 Civ. 6796, 2011 WL 70561, at *2 (S.D.N.Y. Jan. 6,
2011) (precluding plaintiff from introducing documents that were responsive to the
request to produce but were not timely produced).
The Case Management Order is amended as follows:
Fact Depositions shall be completed by August 1, 2025.
Plaintiff’s expert witness disclosures are due by August 15, 2025.
Defendant’s expert witness disclosures are due by September 12, 2025.
Expert depositions shall be completed by October 31, 2025.
Dispositive motions are due by November 21, 2025.
SO ORDERED.
DATED: Buffalo, New York
April 7, 2025
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge