Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO v. City of New York

Nature of the Order

The parties submitted several letters concerning unresolved discovery disputes. The plaintiffs sought expedited rulings, additional discovery deadlines, permission to seek sanctions under Federal Rule of Civil Procedure 37 for discovery failures not cured by a deadline, and a conference concerning expert-discovery deadlines. The City did not oppose a fact-discovery deadline, opposed Rule 37 sanctions, and took no position on extending expert discovery. The court stated that it granted in part and denied in part the plaintiffs’ request.

The order addressed discovery needed before the October 11, 2024 deadline for summary-judgment motions and renewed class-certification motions. The court recounted that it had previously found the plaintiffs’ discovery requests relevant and had ordered the defendants to comply. It also had warned that sanctions could be considered if the City did not complete previously ordered demographic-data production.

Required Productions and Data

The court ruled that the City did not need to produce paper performance evaluations from 2004 through 2019. A City records-management officer estimated that digitizing those evaluations would require one full-time employee approximately 2,250 hours, or about 321 workdays. Applying the proportionality requirement in Rule 26(b)(1), the court found that the burden and cost outweighed the limited benefit. The order stated that evaluations from 2020 through 2022 had already been produced and that the City was not aware of electronic records for 2004 through 2020.

The plaintiffs narrowed their request to evaluation ratings for the earlier years and to ratings, rather than full evaluations, for 2023. The City had to provide the 2023 ratings by September 6. If the deposition of Benny Thottam showed that electronic ratings existed for 2004 through 2020, the City had to propose a schedule for producing them.

The City represented that it had completed production of cessation dates for emergency-medical-services employees. The plaintiffs were to review that production and provide a status update by September 6. The parties also believed updated “BITs data” would likely address issues involving employees’ certifications and data snapshots for employees who were not employed on December 31 of a given year; the City had to provide additional snapshots, if available, by September 6 and the parties had to report their status.

The parties were directed to continue working toward a single usable dataset for expert analyses concerning class certification and summary judgment. The City had to confer with its experts, and the parties had to report whether they could agree on the dataset and on language concerning the City’s claim that it had produced everything in its possession. The City also had to produce the FDNY quarterly Civilian Workforce Analysis from 2004 to the present by September 6.

The order further required or addressed the following materials:

The court also stated that corrected FISA-OPA pay data had to be produced by September 6 and that the City had to provide an updated privilege log by that date. The parties agreed to submit expert reports at the same time as their class-certification and summary-judgment motions and to reserve the right to depose opposing experts afterward.

Depositions

The court allowed the plaintiffs to depose both witnesses to whom the City had not objected and witnesses whose depositions the City opposed on relevance and proportionality grounds. The witnesses included Roberto Colon, Joseph Sanders, Vanessa Brady, Robert Alexander, Michael Fields, Don Nguyen, James Booth, Barbara Dannenberg, Rebecca Mason, Kamaldeep Deol, Benny Thottam, and remaining witnesses concerning organizational-deposition topics.

All of those depositions together were limited to 25 total hours, including depositions under Rule 30(b)(6), which allows a party to question an organization through a witness prepared to testify about stated topics. The court also said that no deposition could exceed the individual time limits listed in the order and strongly encouraged the plaintiffs to prioritize the discovery they needed. The order preserved an earlier seven-hour limit for the plaintiffs’ depositions of Dr. Erath.

Organizational-Deposition Topics

The court evaluated topics in a supplemental notice for a Rule 30(b)(6) deposition under the requirement that the topics be described with reasonable particularity—that is, with enough specificity for the organization to prepare a witness.

- Topic 3, concerning the creation and implementation of the FDNY Fire Bureau’s promotion process from 2004 to the present, was sufficiently specific. - Topic 4, concerning steps taken to remedy implicit bias or subjectivity in the promotion process, was too broad and insufficiently specific. - Topic 5, concerning all discrimination complaints by EMS employees and the City’s responses, was too vague. - Topic 9 was sufficiently specific as to policies and actions responding to the identified settlements, but the request for “any reformative or remedial steps” was too broad as written. - Topics 10, 11, and 12, concerning positions on proposed changes to Civil Service Law section 59-b and efforts or reasons relating to its implementation, were insufficiently specific or too subjective for a Rule 30(b)(6) deposition. - Topic 14, concerning formal discipline for violations of conflict-of-interest laws or policies, was not unduly vague. - Topic 15, concerning promotional opportunities, applicants, ineligible applicants, and those promoted, was more appropriately treated as a request for existing documents. If no documents containing that information existed, an organizational witness could not be expected to prepare to answer it.

Disposition and Next Steps

The parties had to submit another update by September 6 detailing the schedule for remaining depositions. If they could not agree, each side had to submit a proposed schedule for completing remaining fact and expert discovery. The court stated that all discovery had to be completed in time for the October 11 deadline and that no extensions were guaranteed. The order was signed by United States Magistrate Judge Jennifer E. Willis.