Hubbuch v. J&M Realty Services Corp.

Background

Edward D. Hubbuch, who was representing himself, filed a motion labeled a “Motion to Compel Discovery.” He sought two categories of materials:

- From J&M Realty Services Corp., Jerry Edelman, David Edelman, Davidoff Hutcher & Citron LLP, and Benjamin Noren, documents and communications concerning any agreement to fund, pay, or indemnify George Essock Jr.’s individual legal-defense costs in the case. - From the City of New York, documents and communications concerning its decision not to provide George Essock Jr. with legal representation in his individual capacity as a New York City Marshal.

The defendants opposed the motion, and Hubbuch filed a reply. Hubbuch also filed a related motion for a pre-motion conference.

Why the Court Recharacterized the Motion

The court explained that a motion to compel assumes that the requesting party properly served discovery requests and that the recipient failed to respond by the deadline. Neither condition existed here. Hubbuch served the discovery requests without court permission even though the parties had not yet held the required conference under Federal Rule of Civil Procedure 26(f). He also filed the motion before the defendants’ response deadline.

Because Hubbuch was representing himself, the court read his filings generously and treated the motion as a request for expedited discovery under Rule 26(d)(1). Expedited discovery is discovery allowed before the ordinary discovery schedule. The court applied a “good cause” standard, asking whether the requests were reasonable under the circumstances.

Court’s Analysis

The court held that Hubbuch did not show good cause for expedited discovery. Hubbuch said the requested materials were needed to establish the “joint action” element of his claim under 42 U.S.C. § 1983 and the deliberate-indifference requirement for municipal liability under Monell v. Department of Social Services. He also argued that defendants were likely to assert privilege and that the materials were needed to oppose dismissal or summary judgment.

The court rejected those reasons. The possibility of privilege objections did not establish the urgency needed for expedited discovery. Hubbuch also did not show that the documents might be destroyed or become unavailable without immediate production. The court found that requiring defendants to respond while preparing their response to Hubbuch’s amended complaint would prejudice them.

The court further noted that the requested materials went to the merits of the case. It said expedited merits discovery is ordinarily inappropriate. Discovery also was not needed to oppose a potential motion to dismiss because such a motion generally considers whether the complaint is legally sufficient, rather than weighing evidence. The court stated that Hubbuch would ordinarily have an opportunity to conduct discovery before any summary-judgment stage.

Rulings

The court denied Hubbuch’s Motion to Compel Discovery, whether treated as a motion to compel or as a motion for expedited discovery. It also denied his related Motion for Pre-Motion Conference. The order was signed by United States Magistrate Judge Gary Stein.