Rivera v. Lettire Construction Corp.

Background

Roman De Gabriel Rivera sued Lettire Construction Corp., Mott Center LLC, Redfern FRP LLC, and Phipps Houses. The opinion concerns two discovery-related motions, not the underlying claims in the lawsuit.

Rivera asked for a temporary protective order under Federal Rule of Civil Procedure 26(c) allowing him to delay producing audio recordings until after the deposition of nonparty witness Guillermo Sanchez Melgarejo. Rivera’s counsel made the recordings during telephone conversations with Melgarejo. The parties disputed whether the recordings were made without Melgarejo’s knowledge. Rivera acknowledged that the recordings should be produced but sought to delay production because Melgarejo might tailor his deposition testimony after listening to them.

After the court denied the protective-order motion in a short memorandum endorsement, Rivera filed another motion asking the court to temporarily refrain from issuing its written opinion and to give him more time to produce the recordings while seeking review of the order. The court treated this as a request to stay its order.

Protective-order ruling

Rule 26(c) allows a court to issue a protective order when the moving party shows good cause to protect against annoyance, embarrassment, oppression, or undue burden or expense. The court explained that good cause requires a particular and specific factual showing, not conclusory allegations.

The court held that Rivera did not meet that burden. Rivera offered only the assertion that Melgarejo might tailor his testimony after hearing the recordings. The court noted that Melgarejo was a nonparty witness with no apparent stake in the outcome and that the recordings reflected his own recollections of what he saw. The court stated that reviewing evidence before testifying can refresh a witness’s memory and found no significant value in preserving this witness’s unrefreshed recollection.

The court also rejected Rivera’s argument that delayed production was needed to preserve the recordings’ impeachment value. It distinguished cases involving recordings or surveillance footage that directly captured potentially significant conduct. Here, the recordings were out-of-court statements not made under oath, and Rivera provided no evidence that Melgarego’s testimony was likely to differ from the recordings. The court therefore found that the recordings’ impeachment value was not sufficient to justify delaying production.

Motion to stay

The court considered four factors for a stay pending review: possible irreparable harm to Rivera without a stay, substantial harm to another party if a stay issued, Rivera’s likelihood of success on review, and the public interest. The court found that none favored a stay. Rivera had not shown prejudice from allowing Melgarejo to review the recordings before his deposition, had not shown a substantial possibility of success on review, and had not shown that the public interest would be affected.

Disposition

The court denied Rivera’s motion for a protective order and also denied Rivera’s motion for a stay of the order denying protective relief. It directed Rivera to produce the recordings before the deposition. If timely production was not practical, the parties were directed to meet and confer in good faith about rescheduling the deposition for another date in August 2022. The court also requested that the clerk terminate the motion at ECF No. 112.