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

Background

The plaintiffs are Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO, and two New York City Fire Department employees. They brought a putative class action against the City of New York, the FDNY, the Department of Citywide Administrative Services, and several unidentified defendants. They allege that FDNY Emergency Medical Services Bureau employees seeking promotions above lieutenant experienced disparate treatment and disparate impact based on impermissible considerations. Their claims arise under 42 U.S.C. §§ 1981 and 1983 and the New York State and New York City Human Rights Laws.

The order addressed two discovery-related motions. The defendants moved for sanctions under Federal Rule of Civil Procedure 37(b)(2)(A), asking the court to stay the class-certification briefing schedule, require the plaintiffs to produce Local 3621 President Vincent Variale for a one-hour deposition, and require reimbursement for the cost of an expedited deposition transcript. The plaintiffs filed a cross-motion asking the court to require the defendants to accept Variale’s affidavit instead of a live deposition and to produce a Rule 30(b)(6) witness concerning demographic data.

Prior deposition order

In a December 9, 2020 order, the court had granted in part the defendants’ motion to compel Variale’s testimony. It ordered that the defendants could depose Variale for no more than one hour about four topics that arose during his earlier deposition. The topics concerned the identities of individuals who allegedly provided information about promotions, investigations, or a veteran’s time off. The court later suggested that the parties discuss whether an affidavit could be used, but it did not require the defendants to accept an affidavit in place of the deposition. The court also denied the plaintiffs’ request to reconsider the December 9 order.

Analysis

The court found that the plaintiffs had failed to comply with the order requiring Variale’s deposition. It concluded that the refusal was intentional and that the plaintiffs’ reasons—that the order had no deadline and that an affidavit would be more efficient—did not excuse noncompliance. The court also noted that the parties had spent about two months unable to schedule a one-hour deposition.

The court did not find, however, that the defendants had shown prejudice from the delay. The defendants had not explained why Variale’s answers were necessary for their opposition to class certification, and the court could not otherwise determine that his testimony was needed for that purpose. The court therefore declined to impose monetary sanctions, including reimbursement for an expedited transcript.

The court also ruled that Variale’s affidavit was not sufficient to replace his deposition. The affidavit listed names without identifying information such as rank, employment dates, or address. The defendants were entitled to ask limited follow-up questions about the identities listed in the affidavit.

The class-certification briefing schedule had been set by Judge Liman. The court stated that it was not authorized to change that schedule and that any request for an extension had to be directed to Judge Liman. The court did not require Variale’s deposition to occur before the defendants’ deadline for opposing class certification.

Disposition

The defendants’ motion was GRANTED IN PART: the plaintiffs were ordered to make Variale available for the one-hour deposition required by the December 9 order no later than February 19, 2021. The motion was OTHERWISE DENIED, including the requests for a stay of the class-certification briefing schedule and monetary sanctions.

The plaintiffs’ cross-motion was GRANTED IN PART: the defendants were ordered to make a Rule 30(b)(6) witness available for a deposition concerning demographic data no later than February 28, 2021. The cross-motion was OTHERWISE DENIED, including the request to substitute Variale’s affidavit for his deposition.