Fischer v. Verizon New York, Inc.

Background

The case concerns Fischer’s allegations that Verizon New York, Inc. and Verizon Online LLC repeatedly made prerecorded automated calls to his home landline without his prior consent. He alleged violations of the Telephone Consumer Protection Act and New York General Business Law § 339-p. Fischer represented himself.

The opinion addresses only Fischer’s motion for sanctions based on alleged discovery failures. He sought sanctions under Federal Rule of Civil Procedure 37, 28 U.S.C. § 1927, and the court’s inherent authority. His requested remedies included precluding evidence or testimony and allowing an adverse inference, meaning a conclusion unfavorable to Verizon based on alleged discovery misconduct.

Rule 37 Claims

The court held that Fischer did not show the first required basis for Rule 37 sanctions: that Verizon breached a discovery obligation or court order. The court also found that Fischer had not shown the negligence or bad faith needed for the requested adverse-inference and preclusion remedies.

For Fischer’s document requests, the court found that he had not adequately explained why many of the requested records were relevant. Some requests were vague or sought information not properly obtained through document requests. Verizon had produced documents within its possession, custody, or control, and a party generally is not required to produce documents it does not possess or cannot obtain. The court also found no supported showing that Verizon altered electronically stored information or otherwise violated its discovery obligations.

The court rejected Fischer’s arguments concerning records predating 2014 and unspecified “customer information.” It noted that the Telephone Consumer Protection Act claims were subject to a four-year limitations period and that Verizon represented it had produced records concerning Fischer and his wife. The court also found sanctions unwarranted for information allegedly held by Verizon’s agents or contractors because Fischer did not identify specific withheld documents or show that they were within Verizon’s possession, custody, or control.

The court found Verizon’s initial disclosures complied with Rule 26. Verizon provided witness names and its counsel’s contact information, and it provided additional address information when Fischer requested it. The court also rejected the challenge to Verizon’s Rule 30(b)(6) witness, Meryl Friedman. A Rule 30(b)(6) witness testifies on behalf of an organization about specified topics. Friedman testified for nearly seven hours, and the court found that she was prepared to answer relevant questions. Fischer did not identify relevant deposition topics on which she had allegedly failed to testify, much less show an extreme lack of preparation.

Other Sanctions Requests

The court also denied sanctions under 28 U.S.C. § 1927 and its inherent authority. Section 1927 permits sanctions against an attorney who unreasonably and vexatiously multiplies court proceedings. Inherent-authority sanctions may reach a party, an attorney, or both when conduct is undertaken in bad faith or for an improper purpose. The court found that Fischer identified no facts showing that Verizon’s actions lacked a legal or factual basis or were taken in bad faith. The court also noted Fischer’s acknowledgment that Verizon’s counsel had cooperated with him.

Disposition

Magistrate Judge Ona T. Wang denied the motion in full. The court directed Verizon to submit a joint status letter concerning a proposed schedule for summary-judgment briefing and directed the clerk to close the sanctions motion.