State's motion for a protective order pursuant to CPLR 3103 holding that defendant need not provide responses to claimant's supplemental notice to produce granted, in part, and denied, in part. Claimant's cross-motion granted to the extent of ordering a deposition of a retired employee.
|Claimant short name:||PARSONS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||BROWN HUTCHINSON, LLP
BY: Kimberly J. Campbell, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
|Third-party defendant's attorney:|
|Signature date:||February 18, 2021|
|See also (multicaptioned case)|
The State of New York moves pursuant to CPLR § 3103 for an order of this Court holding that defendant need not provide any further discovery materials to claimant and specifically, that defendant need not respond to claimant's Supplemental Notice to Produce dated August 24, 2020 or produce additional witnesses for depositions pursuant to claimant's notice for an examination before trial dated August 24, 2020. The claimant opposes this motion and filed a cross-motion pursuant to CPLR § 3124 to compel defendant to respond to the aforementioned Supplemental Notice to Produce as modified December 31, 2020 and to extend the time period for claimant to complete pretrial discovery. Oral argument was granted and the return date was originally scheduled for January 20, 2021. By stipulation, the motion was adjourned to February 10, 2021.
The Supplemental Notice to Produce in issue was originally emailed to defendant on August 24, 2020. At that time, this claim was scheduled for a liability only trial beginning October 13, 2020. As a result, a status conference was scheduled by the Court with counsel and held on September 11, 2020, and an Amended Scheduling Order was issued requiring that all depositions and all other discovery be completed by December 4, 2020. It was also agreed to at this status conference that claimant would not require the defendant to respond to the aforementioned notice to produce until after depositions of the defendant's representatives were conducted. On November 12, 2020, claimant's counsel renewed his demand that the defendant respond to the Supplemental Notice to Produce. Depositions of four of defendant's employees were conducted on November 16, 17 and 20, 2020. The defendant's counsel then requested a status conference with the Court, which was held on December 4, 2020, where permission was granted for the defendant to bring the present motion.
In his cross-motion and opposition to defendant's motion, claimant's counsel's affirmation at paragraph 23 states that on December 31, 2020, claimant served on defendant a revised discovery demand in which claimant withdrew 26 of the 42 demands. Specifically, the claimant has withdrawn demand items numbered 1, 5, 7, 8, 9, 11, 14, 15, 16, 17, 18, 20 through 28, 30, 31, 33, 34, 36 and 37 of the August 24, 2020 Supplemental Notice to Produce.
For reasons stated on the record during the course of oral argument, the Court finds that the following demands do not seek documents that would reasonably lead to relevant information and are also overly broad. Accordingly, this Court grants the defendant a protective order as to demand items numbered 2, 3, 4, 6, 10, 12, 32, 38 and 42.
That with respect to demand item numbered 13, the defendant is to respond to that portion of this demand seeking a copy of any employee training documents relating to incident/accident procedures and protocols as of February 4, 2017 but otherwise grants defendant a protective order with respect to the remainder of demand 13.
The defendant's motion is denied with respect to demand items numbered 19, 29, 35, 39 and 41. With respect to these demands, defendant's counsel stated on the record that all documents requested in the aforementioned demands have previously been disclosed to claimant.
That with respect to demand numbered 40, the defendant is to respond to that portion of this demand which seeks a copy of documents relating to claimant's relocation from the fifth floor to the third floor during his confinement at the defendant's Gowanda Correctional Facility between October 1, 2016 to February 4, 2017.
Finally, the claimant's cross-motion is granted to the extent that claimant may conduct an examination before trial of Marjorie Taft, a retired nurse from the Gowanda Correctional Facility, which deposition is to be completed by not later than May 10, 2021.
February 18, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following have been read and considered by the Court:
1. Notice of Motion for a Protective Order and Affirmation of Carlton K. Brownell, III, Esq. dated December 8, 2020 with annexed Exhibits A - O;
2. Notice of Cross-Motion and Affirmation of Okeano N. Bell, Esq., dated January 13, 202 with annexed Exhibits A-M; and
3. Reply Affirmation of Carlton K. Brownell, III, Esq. dated February 4, 2021 with annexed Exhibits A-D.