IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

Background

Plaintiffs asked the court to compel the City to produce witnesses for questioning under Federal Rule of Civil Procedure 30(b)(6) about efforts to preserve protest video footage. They also requested sanctions, including treating certain answers to unresolved questions as established, and sought costs and fees. The City opposed every part of the application and provided additional information about its preservation efforts and capabilities.

The court’s March 2, 2021 order required discovery motions to be filed promptly after the reason for the motion arose and, absent extraordinary circumstances, no later than 30 days before the close of discovery. That order stated that untimely applications would be denied. The court had also issued a January 23, 2023 order giving instructions for resolving the request for discovery about lost video.

Timeliness and Scope of the Request

The court found the application untimely for several reasons. Plaintiffs did not hold the follow-up meeting contemplated by the January 23 order until March 23, 2023. They then waited until June 1 to serve a notice for a deposition on written questions under Rule 31 and filed their application with the court on June 21. The application therefore came after the June 14 deadline for discovery applications, after the June 16 deposition cutoff, and less than 30 days before the July 14 close of fact discovery. The court also found that plaintiffs had not acted with reasonable speed and had not justified much of the delay.

The court stated that these defects alone made the application infirm. It also emphasized that requests for discovery about discovery require an adequate factual basis and close review because they can prolong an already costly and time-consuming process. The court noted that the City had already provided information about the failure to preserve certain types of video and that this information might give plaintiffs much of what they needed for a future motion concerning loss or destruction of evidence.

Ruling

Rather than denying the application in its entirety, the court permitted limited information gathering through interrogatories instead of a deposition containing hundreds of questions. Plaintiffs could propose 15 clearly defined interrogatories, including any subparts, seeking the information most important to them. Plaintiffs were directed to provide their proposal to the City, discuss whether they could agree, and, if necessary, submit a joint letter containing each side’s views and proposed interrogatories. If the interrogatories were ordered or agreed to, responses would be due within 14 days.

The order did not separately state a ruling on the requested sanctions, costs, or fees. The opinion is a discovery order and does not decide the underlying claims.