John Doe v. City Of New York

Background

John Doe brought claims including excessive pretrial detention and malicious prosecution. He alleged that NYPD Sergeant Richard Roe concealed information showing that Roe had directed or approved Doe’s interactions with a person involved in an alleged plot. The opinion is redacted in places to protect highly sensitive information about Doe and his work as a confidential informant.

During discovery, defendants requested documents concerning Roe, including documents naming Roe or containing his phone numbers. Doe initially said that he had no responsive documents. After depositions and the close of fact discovery, Doe identified a “Second Number” as a number he had used to communicate with Roe, produced a business card containing a purported personal cellphone number for Roe, and produced an undated handwritten list of phone numbers. Doe later supplemented his responses to assert that he had communicated with Roe through Roe’s personal cellphone.

Defendants moved under Federal Rule of Civil Procedure 37(b) and (c) for sanctions. They sought to bar Doe from using the business card and handwritten list, from relying on additional personal-cellphone records, and from claiming that he had used the Second Number or Roe’s personal cellphone to communicate with Roe. Alternatively, defendants sought the costs of another deposition and a sworn statement confirming the truth and completeness of Doe’s discovery responses and production. Doe opposed the motion, describing the discovery failure as an honest oversight.

Court’s Analysis

The court found that Doe violated the court’s discovery deadline and failed to timely supplement his discovery responses as required by Rule 26(e). It rejected Doe’s explanation that he did not understand the documents’ relevance. The court stated that the way Doe communicated with Roe was central to the case and that the materials should have been disclosed earlier. It also found that relying on Local Rule 33.3 did not justify Doe’s initial refusal to answer the interrogatory or produce documents.

The court found the handwritten list particularly problematic because it was undated, its author was unidentified, and it was produced after defendants questioned Doe’s deposition testimony. The court therefore determined that precluding reliance on the list was an appropriate sanction. For substantially similar reasons, it also precluded Doe from introducing or relying on the business card.

The court did not bar Doe from testifying that he understood the Second Number he called from jail to be Roe’s number, if that was in fact his understanding. The court noted that the call transcript had been timely produced and that Doe had testified that he had more than one number for Roe.

The court treated the personal-cellphone issue conditionally. If Doe testified at his deposition that he communicated with Roe through Roe’s personal cellphone, and if he in fact did so, he could testify at trial about those communications. If he had not given that deposition testimony and first raised the contention after discovery closed, he was precluded from testifying about or otherwise relying on that contention.

The court denied without prejudice defendants’ request to bar Doe from relying on documents obtained through outstanding third-party subpoenas. The court had allowed those subpoenas with the expectation that resulting documents might be used despite being obtained after the October 13, 2023 deadline. The court stated that the ruling did not affect the parties’ ability to seek exclusion of that information later under the Federal Rules of Evidence.

Because Doe did not oppose the request for a sworn attestation, the court ordered him to provide one by January 31, 2024, to the extent he had not already done so. The attestation had to address the truth of his October 18, 2023 discovery responses and whether he had produced all documents concerning his criminal prosecution and communications with Roe related to that prosecution.

Disposition

Judge Katharine H. Parker concluded that defendants’ motion for sanctions was granted in part and denied in part. The court did not award fees connected with the sanctions motion because the motion was granted only in part. The clerk was directed to terminate the motion.