TZVEE WOOD et al., Plaintiffs, v. MUTUAL REDEVELOPMENT HOUSES, INC., et al., Defendants 14cv7535 (AT) (DF) United States District Court, S.D. New York Signed March 21, 2019 Counsel Tzvee Wood, Long Beach, NY, Pro Se. Andrea Malester, Long Beach, NY, Pro Se. Andreas E. Theodosiou, William J. Geller, Braverman Greenspun, P.C., Joseph Goljan, Rosner, Nocera & Ragone, LLP, New York, NY, for Defendants Mutual Redevelopment Houses, Inc., Carmen Santiago, Brendan Keany, Mabel Andujar, Jordan Villines, Morris Benjamin, Bette Levine, Matthew Barile, Marc Boddewyn, Gena Feist, Brian Hammerstein, Fran Kaufman, Linda Lowenstein, Walter Mankoff, Bridget Oteri Robinson, Robert Sikorski. Joseph Goljan, Rosner, Nocera & Ragone, LLP, Andreas E. Theodosiou, Braverman Greenspun, P.C., New York, NY, for Defendants Jeanne F. Brennan, Irma P. Lobel, Jack Raskin, Miriam Zwerin. Andreas E. Theodosiou, Braverman Greenspun, P.C., New York, NY, for Defendant John and Jane Does 1-10. Freeman, Debra, United States Magistrate Judge ORDER *1 On February 13, 2019, this Court issued a discovery Order (Dkt. 163), which (1) directed Defendants to provide, by February 20, 2019, evidence of the terms of the discovery agreement that had been negotiated with Plaintiffs’ former counsel at a May 14, 2018 meet-and-confer session, and directed Plaintiffs to submit, by February 22, 2019, any contrary non-privileged evidence in their possession regarding the scope of that discovery agreement; (2) directed Plaintiff to produce, by February 27, 2019, audio recordings containing the statements of any parties to this action; and (3) directed the parties to submit, by February 27, 2019, either (a) a jointly proposed deposition schedule for the Court to “so order,” or, if the parties could not agree on a deposition schedule, then (b) a jointly proposed list of witnesses, the dates of those witnesses’ availability, and Plaintiffs’ and Defendants’ counsel's own availability, so that the Court could set a deposition schedule. This Order will follow up on each of those three rulings. Production of Documents Pursuant to the May 14, 2018 Discovery Agreement Negotiated by Counsel On February 21, 2019 (one day past the deadline set by the Court in its February 13 Order), Defendants filed a letter attaching copies of certain email exchanges and correspondence between counsel that, at least to some extent, purport to memorialize the history of counsel's discussions regarding the scope of discovery. (See Dkt. 164.) In particular, it appears that a letter dated June 29, 2018 from Defendants’ counsel to Plaintiffs’ former counsel memorializes counsel's May 14, 2018 agreement with respect to the further responses that Defendants agreed to provide to Plaintiffs’ outstanding document requests (see id., Ex. E), and the responses provided by Defendants in that June 29 letter appear sufficient. The submitted communications between counsel, however, do not specifically memorialize counsel's May 14 agreement with respect to the further responses that Plaintiffs were to provide to Defendants’ outstanding requests. It is apparent that an agreement was made in that regard, as this fact has been confirmed both by Defendants’ counsel (see Dkt. 164) and by Plaintiffs’ former counsel (see Dkt 151 (“Plaintiffs agreed to provide certain discovery in the meet and confer held on May 14, 2018”)). Moreover, Plaintiffs’ counsel informed this Court, on July 5, 2018, that Plaintiffs had agreed to produce documents by June 29, 2018, and had prepared a CD, containing the documents in question, which plaintiff Tzvee Wood (“Wood”) personally took to the office of Defendants’ counsel, on that date. (Id.) According to Defendants’ counsel, however, the receptionist in that office would not accept the delivery when counsel was not then present, and Wood therefore retained possession of the CD. (Id.) According to Plaintiffs’ then-counsel, “[t]he discovery, which was to be produced on a CD, is currently in Plaintiffs’ office and should Defendants’ choose to accept same, Plaintiffs are willing to immediately exchange said CD.” (Id.) No party has informed this Court as to whether this CD was ever, in fact, produced to Defendants. *2 Indeed, to date, Plaintiffs have provided no information to this Court regarding their understanding of the results of counsel's May 14 meet-and-confer, including whether they remain in possession of a CD containing documents that they understood they were required to produce by June 29, 2018. It is possible that the CD was retained not by Plaintiffs themselves, but rather by their former counsel, but Plaintiffs have also failed to make this clear. Rather, Plaintiffs have only vaguely informed this Court, by letter dated February 27, 2019 (past the deadline set by this Court), that they could not provide information regarding the scope of the May 14, 2018 agreement without first obtaining the files of their former counsel. (See Dkt. 165.) By letter dated March 13, 2019 (Dkt. 176),[1] plaintiff Wood further informed this Court that Plaintiffs were finally in receipt of some of their former counsel's files, but – without giving any further explanation – he stated that those files appeared to be incomplete. Wood requested another two weeks (i.e., until March 27, 2019) to “provide a further update to the court.” (Id.) Wood further wrote: “Once Plaintiffs are in possession of the outstanding documents, we ask that we be permitted to supplement any pertinent writings concerning the May 14, 2018 meet and confer.” (Id.) At this point, absent any update from Plaintiffs, this Court is left with only two data points regarding Plaintiffs’ agreed discovery obligations: (1) a statement by Defendants’ counsel, in a July 5, 2018 letter to this Court (Dkt. 150; see also Dkt. 164, Ex. F), that Plaintiffs had agreed, through their former counsel, to produce: “all party statements, any correspondence or communication between Plaintiffs and any party or witness, as well as records related to their claim of damages and Mr. Wood's claim of being a full-time student and a part-time employee” (although Defendants have submitted no communications between counsel memorializing that this was, in fact, the scope of what was agreed on May 14, 2018), and (2) the statement by Plaintiffs’ former counsel that a CD had been prepared containing documents that Plaintiffs had agreed to produce, but that it was not accepted by Defendants’ counsel's office on the agreed date of production. In light of this, and unless Plaintiffs are able to show, before the below-ordered production date, that Defendants and their former counsel have made misrepresentations to this Court regarding the nature of their discovery agreement, Plaintiffs are directed to make arrangements with Defendants’ counsel to provide the CD to Defendants no later than April 4, 2019. If the CD is not currently in Plaintiffs’ possession, and cannot be obtained through diligent effort, then Plaintiffs are otherwise directed to produce, by April 4, 2019, by way of a newly prepared CD or in some other readable form, (1) all party statements (including statements recorded by audio, as set out below), (2) any correspondence or communication between Plaintiffs and any party or witness, (3) records related to Plaintiffs’ claim of damages (including any documents relating to their damages claim that they were forced to live in an uninhabitable home due to damages caused by hurricane Sandy (see Dkt. 164, Ex. A)), and (4) and Mr. Wood's claim of being a full-time student and a part-time employee during the time of the alleged events (including any work/school schedule that would show that, at that time, he was busy with work or school prior to the Jewish holidays (see id.)). Plaintiffs’ Production of Audio Recordings of Party Statements *3 Plaintiffs appealed the aspect of this Court's February 13, 2019 Order that required Plaintiffs to produce the audio recordings of party statements prior to depositions, and Judge Torres has now affirmed this Court's ruling. (See Dkt. 175.) Therefore, to the extent Plaintiffs have not already produced the audio recordings, they are, as stated above, directed to do so no later than April 4, 2019. Plaintiffs are cautioned that this Court does not expect to extend that deadline, and a failure to make this production may result in sanctions. Scheduling of Depositions The parties have failed to submit a jointly proposed deposition schedule as directed by this Court, or to provide any date-specific information regarding the availability of counsel, the parties, and other witnesses. Further, although Defendants had previously informed this Court that they wished to depose both Wood and Malester (and although this is also evident from the emails between counsel that Defendants have now produced (see, e.g., Dkt. 164, Ex. C)),[2] Defendants have not indicated whether they are seeking to depose any other witnesses. Plaintiffs, for their part, have supplied a list of no fewer than 30 witnesses (many of them named defendants), one of whom, Carmen Santiago, is a witness whose deposition, according to Plaintiffs, is likely to last two days. (Dkt. 171.) Yet Wood has explained, at length, that he will have little ability to conduct depositions – except, perhaps, for two days per month – due to conflicts with his work schedule and, at certain times of year, religious holidays. This is unacceptable. With the long list of deponents and with the schedule that Wood has proposed (allotting only two days per month for depositions), it would take the parties nearly a year and a half to complete depositions, in a case that is not a class action or otherwise fairly characterized as complex litigation. A plaintiff – even one proceeding pro se – has an obligation to prosecute his or her case diligently, and a failure to do so may result in dismissal of the action. See Fed. R. Civ. P. 41(b); see also, e.g., Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982); West v. City of New York, 130 F.R.D. 522, 526 (S.D.N.Y. 1990) (“A plaintiff's lack of diligence alone is enough for dismissal.” (citation omitted)). Asking for nearly a year and a half to conduct depositions, at the pace of only two depositions per month, does not represent adequate diligence. Moreover, if, as he represents, Wood's employment schedule makes it difficult for him to take sufficient time off from work to conduct depositions, then Plaintiffs have several other options. First, Plaintiffs can – and should – significantly pare down their list of desired deponents. Absent stipulation or court order, Rule 30(a)(2)(A)(i) only allows a party to conduct a total of 10 depositions – a third of the number that Plaintiffs have proposed. Even though Plaintiffs have named many individuals as defendants in this action, this does not mean that all of these individuals must be deposed. Certainly, Plaintiffs may be able to prioritize certain depositions by the extent of the Defendants’ or other witnesses’ knowledge and involvement in key events. It may not be necessary to depose each of the individual defendants if, for example, the extent of the knowledge that some of them had about facts relevant to this matter was derived from their attendance at board meetings that others also attended. If a few defendants were able to testify about what transpired at such meetings, then the testimony of other attendees – even if parties – may be duplicative and cumulative. In any event, unless Defendants stipulate to Plaintiffs’ taking more than 10 depositions, Plaintiffs will have to apply to this Court for leave to do so, and before this Court will permit Plaintiffs to take anywhere close to 30 depositions, Plaintiffs would have to set out, with specificity, their need for that many depositions, explaining why the information sought would be relevant to the claims or defenses raised in this action, not cumulative, and proportionate to the needs of the case.[3] See Fed. R. Civ. P. 26(b)(1), (2)(a), (2)(C). *4 Second, Plaintiffs can consider taking two or more depositions on the same date. Plaintiffs have made no showing that full-day depositions would be needed for every witness, regardless of their level of their personal involvement in the events alleged. It may well be that some of the depositions sought by Plaintiffs could be conducted in an hour or two, or certainly in half a day, thereby allowing for multiple depositions on a single reserved deposition date. Third, the Court notes that Malester has said nothing whatsoever about her availability to conduct depositions, and the Court has no reason to believe that she also has work or other conflicts, or that she would not be competent to conduct depositions. Finally, Plaintiffs can take discovery from any and all Defendants by serving them with interrogatories pursuant to Rule 33 of the Federal Rules of Civil Procedure, and/or by taking their depositions on written questions, pursuant to Rule 31. Depositions on written questions would not require Wood to miss work. With these points in mind, and given the age of this litigation, this Court will again modify its prior Scheduling Orders (the last of which had set a deadline of January 31, 2018 for the close of all fact discovery (see Dkt. 126)) by extending the deadline for fact discovery one last time. All fact discovery, including depositions, shall be completed by September 27, 2019, and this deadline will be considered final, such that it will not be extended by this Court absent a showing of extraordinary cause. The parties are instructed that depositions should go forward during this period, regardless of whether any party believes that any document production is still outstanding. Further, absent the actual issuance of a stay by either this Court or Judge Torres, this Order will not be considered stayed pending any potential appeal of its terms. As Plaintiffs have expressed a preference for depositions to be conducted on Mondays (see Dkt. 171), counsel for Defendants should make immediate inquiries into the proposed deponents’ availability to be deposed on Mondays over the next several months, and should relay that information promptly to Plaintiffs. Cognizant of what this Court has set out in this Order, Plaintiffs should then promptly propose to Defendants a schedule that includes their own depositions (which should not be delayed, given the length of time that they have been sought by Defendants), as well as full or part-day depositions for those defendants or other witnesses whom Plaintiffs deem it most important to depose, within this discovery period. After good faith conference, and no later than April 4, 2019, the parties are directed to provide a stipulated deposition schedule to the Court. If they again fail to do so, then they can be assured that this Court will pick the deposition dates, and, although this Court will attempt to avoid dates that are religious holidays, the dates it selects may well include dates that are not Mondays, may well include more than two days per month, and may not represent the most convenient dates for counsel or any of the parties. Both parties are further cautioned that this Court will no longer tolerate failures by any party to comply, in any way, with Court-ordered schedules, including the deadlines set forth herein. This Court will not be hesitant to sanction parties or counsel, if deadlines are missed without good cause shown. See Fed. R. Civ. P. 16(f)(1)(C); see also, e.g., Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir. 2009) (“[A]ll litigants, including pro ses, have an obligation to comply with court orders.” (internal quotation marks and citation omitted)). *5 SO ORDERED Footnotes [1] Wood's March 13 letter was improperly faxed to the Chambers of the undersigned, and, although this Court has undertaken to docket it, Plaintiffs are cautioned that the Court generally will not accept a pro se litigant's submissions that are delivered directly to Chambers, by fax or otherwise. Moreover, the March 13 letter was not co-signed by plaintiff Andrea Malester (“Malester”), and this Court notes that, while both Plaintiffs have usually signed the letters that they have submitted to the Court, this is not the first time that submissions that purport to be from both Plaintiffs have been signed only by Wood. (See, e.g., Dkt. 169 (stating, “Ms. Malester was not available to sign this letter, but is aware of its content.”); Dkt. 172 (same).) This Court has previously informed Plaintiffs that, as Wood is not Malester's counsel, he cannot speak for her before the Court. [2] Although Defendants’ counsel has long been seeking to schedule Plaintiffs’ depositions, and although, in a letter to Judge Torres, dated March 18, 2019, Defendants ask that a schedule be set for “the conclusion of depositions” (Dkt. 174 (emphasis added)), Defendants have not informed the Court that Plaintiffs’ depositions have now been taken or that those depositions have at least been commenced. Thus, this Court assumes that they still need to be scheduled. [3] Similarly, absent stipulation by the parties or court order, Rule 30(d)(1) limits depositions to “one day of 7 hours,” and thus, unless Defendants agree that defendant Santiago's deposition may exceed that duration, Plaintiffs will have to explain to the Court why that deposition cannot reasonably be completed within seven hours.