Aurecchione v. Falco

Background

Philip S. Aurecchione filed papers seeking four forms of relief concerning four unnamed Rockland County Sheriff’s Department officers, identified as John Doe defendants 1–4. He asked the court to order Sheriff Louis Falco III to disclose their identities; alternatively, to allow limited discovery before the parties’ required discovery conference; alternatively, to allow testimony to be preserved for the limited purpose of identifying the officers; and to extend by 30 days the time to serve the officers after their identities were disclosed.

Aurecchione’s counsel stated that the officers were involved in Aurecchione’s June 1, 2021 arrest and that counsel had tried to identify them through communications with another attorney and a New York public-records request. The record showed that counsel contacted Robert Weissman on August 5, 2022. Weissman responded on August 10 that, because he was outside counsel and had not yet been assigned to the federal case, he lacked authority to provide county documents. Sheriff Falco was served later that day.

The County Defendants—identified in the court’s endorsement as Sheriff Louis Falco III and District Attorney Tom Walsh—also requested a pre-motion conference and permission to file a motion to dismiss Aurecchione’s First Amended Complaint. The opinion does not decide that proposed motion.

Court’s Analysis

The court denied Aurecchione’s motion because he did not follow the court’s Individual Rules of Practice in Civil Cases. Those rules required him to request an informal conference with the court before filing the motion. The court also found that he failed to satisfy the “meet and confer” requirement under Local Civil Rule 37.2 and Federal Rule of Civil Procedure 37(a)(1). A meet-and-confer requirement generally calls for the parties to discuss a discovery dispute before asking the court to resolve it.

The court explained that the communications shown in Aurecchione’s exhibits were premature for purposes of that requirement. Specifically, the attorney contacted by Aurecchione’s counsel had said that he lacked authority to provide county documents until he was officially assigned as lead counsel in the federal case. The court therefore did not reach the merits of whether Aurecchione was entitled to the requested identities, early discovery, preserved testimony, or additional service time.

Ruling

Judge Román denied Aurecchione’s motion “without prejudice with leave to refile.” The order did not add any separate prejudice limitation beyond those words. The court directed Aurecchione to file his position on the County Defendants’ request by September 6, 2022. It also directed the clerk to terminate the motion at ECF No. 24. The attached proposed order and supporting memorandum requested that the discovery relief be granted, but the operative August 30 endorsement denied that motion.