Carmody v. New York University

Background

Fact discovery closed on July 11, 2022, and Defendants’ motion for summary judgment was fully briefed. Plaintiff had also sought a mandatory adverse inference based on Defendants’ alleged failure to preserve and produce relevant text messages. After Defendants made a supplemental production of text messages, an earlier order denied the adverse-inference motion without prejudice to renewal and reopened discovery for the limited purpose of identifying responsive messages.

Plaintiff then asked to reopen discovery for supplemental depositions of Nancy Sanchez, an employee of New York University, and of Defendants Dr. Fritz Francois and Dr. Robert Femia. Plaintiff also asked Defendants to pay the costs of those depositions. The parties separately asked to file information under seal, including text messages attached to their letters. The opinion states that Defendants had marked the messages confidential, but that Defendants did not timely support Plaintiff’s request to seal the exhibits attached to her reply letter.

Rulings

The court granted in part Plaintiff’s request to reopen discovery for further depositions. Plaintiff may depose Nancy Sanchez for no longer than four hours and may re-depose Dr. Francois and Dr. Femia for no longer than one hour each. The renewed depositions of Dr. Francois and Dr. Femia may concern only the newly produced text messages and reasonably related matters. The parties were required to complete the depositions by February 24, 2023, after which Plaintiff had to file a letter confirming that they occurred and stating whether any issues remained concerning the supplemental production.

The court denied Plaintiff’s request for Defendants to pay the costs of the supplemental depositions. It allowed Plaintiff to file a motion for reasonable attorneys’ fees incurred in preparing the adverse-inference motion, with a filing deadline of January 27, 2023, and set deadlines for any opposition.

The court denied the parties’ letter motions to file information under seal. It concluded that information in Defendants’ opposition letter was central to the dispute and that the text messages did not contain information traditionally considered appropriate for sealing. It also denied Plaintiff’s sealing request because Defendants, the parties identified as having an interest in confidentiality, had not timely filed a letter rebutting the presumption that judicial documents are publicly accessible. The Clerk was directed to unseal the documents at Docket Entries 134 and 139. This order did not decide the pending summary-judgment motion.