M.G. v. New York City Department of Education

Background

The plaintiffs moved at Docket 420 to compel the State Defendants to produce additional documents. The motion concerned discovery, the pretrial exchange of information and documents. The court stated that the motion had been fully briefed.

The State Defendants argued that they had already satisfied their obligations for non-electronically stored information responsive to requests issued before September 14, 2020. They also argued that the plaintiffs had not properly met and conferred about productions made during 2023 and early 2024, that the motion was untimely, and that the plaintiffs’ descriptions of deficiencies were not specific enough. The court agreed that the plaintiffs had not adequately met and conferred, but considered the issues and granted relief where it concluded that the interests of justice required it. The court rejected the timeliness and specificity objections.

Rulings on discovery procedures

The court accepted the State Defendants’ representation that they produced documents as kept in the usual course of business. They therefore did not have to cross-reference their production to particular document requests. However, if the plaintiffs could not locate particular documents or match attachments to parent documents, the State Defendants had to reasonably cooperate in identifying where the material could be found.

The court stated that the State Defendants apparently had not provided metadata for their electronically stored information. Because the absence of metadata impeded the plaintiffs’ ability to review and use the production, the State Defendants must produce the metadata or file, by April 24, 2024, an affidavit or declaration from someone with personal knowledge explaining specifically why producing it would be unduly burdensome.

The State Defendants also had to do the following, to the extent they had not already done so, for document requests issued before and after September 16, 2020:

- identify requests for which they had no possession, custody, or control of responsive documents, whether or not they objected to the request; - describe responsive documents withheld based on an objection other than attorney-client privilege or attorney work-product protection; and - give the plaintiffs an affirmative representation when document production was complete.

The court rejected the plaintiffs’ requests for information about the State Defendants’ search methodology, finding no adequate factual basis to require disclosure of that information. It also found no fault with the State Defendants’ objection that they would not search beyond the scope of searches agreed to for other requests. The court overruled an objection based on allegedly outdated or irrelevant information concerning legislation or regulations about applied behavior analysis licensure, but found that issue moot because the State Defendants represented that they had produced responsive documents from before and after the amendment.

Specific requests and privilege log

The court denied the motion as to requests predating September 14, 2020, except to the extent the State Defendants had an obligation to update their discovery. For most later requests, the plaintiffs relied on information and belief that the State Defendants had produced no documents or had not produced all responsive documents. The court found those assertions speculative and denied the motion as to those requests without prejudice to renewal if deposition testimony showed that the State Defendants possessed, controlled, or had custody of responsive documents that should have been produced.

For the smaller number of requests not based on speculation, the parties were directed to meet and confer. The court also held that the State Defendants’ required cooperation in locating documents, identifying withheld documents, and identifying requests with no responsive documents addressed the plaintiffs’ concerns about the lack of cross-references between productions and requests.

The State Defendants agreed to provide a log of documents withheld on grounds other than attorney-client privilege or attorney work-product protection. The court therefore ordered them to provide that log.

Disposition

The court granted in part and denied in part the plaintiffs’ motion to compel. To the extent relief was not granted, the motion was denied. The Clerk of Court was directed to terminate the motion at Docket 420. The order was entered by United States Magistrate Judge Robert W. Lehrburger.