Rivera v. Lettire Construction Corp.

Background

Roman De Gabriel Rivera alleges that he suffered personal injuries while working at a construction site. Guillermo Sanchez Melgarejo, a nonparty eyewitness, was in the immediate area when the alleged accident occurred. Rivera’s counsel learned that Melgarejo was an eyewitness through the defendants’ required disclosures and recorded two conversations with him about what he saw. One recording was made within two weeks of the alleged accident.

Melgarejo’s counsel requested the recordings. Rivera did not dispute that he had to produce them, but asked to delay production until after Melgarejo’s deposition. Rivera argued that the recordings were intended for impeachment—evidence used to challenge a witness’s testimony—and that Melgarejo might tailor his deposition testimony after reviewing them.

Magistrate Judge Katharine H. Parker denied Rivera’s request for a protective order and ordered him to produce the recordings. She found that Rivera had not shown the required good cause for delaying discovery. Rivera objected to that order under Federal Rule of Civil Procedure 72(a), which permits a district judge to change a magistrate judge’s non-final pretrial ruling only when it is clearly mistaken or contrary to law.

Court’s Analysis

The court explained that Federal Rule of Civil Procedure 26(b)(3)(C) generally allows a nonparty to obtain that person’s own prior statement about the action. The rule includes substantially verbatim audio recordings. Under Rule 26(c), a party seeking to delay production through a protective order must show good cause with particular, specific facts rather than conclusory claims or speculation.

Judge Failla acknowledged that courts in the Second Circuit have reached different results on whether to delay production of recordings until after a deposition. But she held that the controlling inquiry was whether Rivera had shown good cause on these facts. Rivera had not provided specific evidence that Melgarejo would lie or change his testimony. The court also noted that Melgarejo was a nonparty eyewitness and that the recordings likely contained substantive information about the accident, not merely impeachment material.

The court rejected Rivera’s argument that the possible impeachment value of the recordings automatically justified delaying their production. It also found that any concern about the recordings’ impeachment value was only part of Judge Parker’s reasoning and that Judge Parker had properly considered the lack of evidence showing a likely change in Melgarejo’s testimony.

Ruling

Judge Failla held that Judge Parker’s decision was not clearly mistaken or contrary to law. The court overruled Rivera’s objections, ordered him to produce the recordings by November 4, 2022, and ordered the parties to meet and confer by that date to schedule Melgarejo’s deposition. The Clerk was directed to terminate the motion at docket entry 115.