Clark v. New York City Housing Authority

Background

La’Shaun Clark filed letters asserting that the New York City Housing Authority (NYCHA) had not complied with an earlier court order. She asked the court to require NYCHA to produce documents and respond to an interrogatory that she said she emailed to NYCHA on February 1, 2021. She also asked the court to require JLC Environmental Consultants, Inc. (JLC) to produce a 2004 insurance policy.

NYCHA said Clark had served a request for production on February 23, 2021, and that it would respond within the 30-day period allowed by Federal Rule of Civil Procedure 34. JLC did not respond to Clark’s letter.

NYCHA’s Discovery Deadline

The court explained that its January 27, 2021, order set a February 11 deadline for initial disclosures and for making discovery requests. It did not set a deadline for responding to those requests. Under Rule 34, responses to requests for production are due in writing within 30 days after service. The response to an interrogatory is likewise due within 30 days under Rule 33.

The court could not determine whether NYCHA received Clark’s February 1 email. It therefore accepted NYCHA’s apparent representation that it first learned of the requests when they were filed on February 23, 2021. Treating February 23 as the service date, the court required NYCHA to respond by March 25, 2021. The court also instructed the parties to confirm receipt when discovery requests are sent in the future.

JLC’s Insurance Policy

The court criticized JLC for failing to respond to Clark’s letter within the deadline in the court’s individual practices. It also stated that JLC appeared to have represented that the requested insurance policy was not in its possession, custody, or control.

The court explained that a party generally need not produce documents it does not possess or cannot obtain, but production may be required when the party has access to, and the practical ability to obtain, documents unavailable to the requesting party. The court required JLC to produce the policy if JLC had that practical ability. If JLC had not already contacted its insurance broker, the court directed it to do so immediately and to take other reasonable steps to obtain the policy or verify its nonexistence. JLC had to describe those steps in a letter to Clark by March 11, 2021. The court stated that taking reasonable steps would fulfill JLC’s obligation to produce documents within its control under Rule 34(a)(1).

Disposition

The order required NYCHA to respond to Clark’s discovery requests by March 25, 2021, and required JLC to produce the insurance policy if it could practically obtain it, while requiring JLC to report its efforts by March 11, 2021. Magistrate Judge Gabriel W. Gorenstein also admonished JLC to comply with the court’s individual practices in the future.