318 F.R.D. 242
E.D.N.Y2016Background
- Plaintiff Susan Gordon sued Target after an in-store incident in Hicksville, NY, seeking damages for personal injuries; the case was removed to federal court on diversity grounds.
- During a status conference Plaintiff said she would request the store surveillance video; Target disclosed its existence but asked to delay producing it until after Plaintiff’s deposition.
- Target argued the video would be used to impeach Plaintiff and that disclosure beforehand could allow tailoring of testimony; Target cited decisions within the Circuit that delayed production pending depositions.
- Gordon opposed the delay, arguing Target had not shown the specific, particularized facts required to justify a Rule 26(c) protective order and cited precedent requiring a showing of good cause.
- The Magistrate Judge reviewed the parties’ submissions and held that conclusory fears of tailoring do not satisfy Rule 26(c)’s good-cause standard; discovery rules favor broad, non-game-playing disclosure.
- The court denied Target’s motion and ordered production of the surveillance video within seven days, and indicated an amended scheduling order would follow.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Target may withhold surveillance video until after Plaintiff’s deposition | Gordon: Target has not shown particularized facts or good cause to delay production; mere speculation is insufficient | Target: Production should be delayed because the video could be used for impeachment and Plaintiff might tailor her testimony if she sees it before deposition | Denied — no good cause shown; conclusory risk of tailoring is insufficient to justify a Rule 26(c) protective order; video must be produced within 7 days |
Key Cases Cited
- Cruden v. Bank of New York, 957 F.2d 961 (2d Cir. 1992) (district court has broad discretion managing pretrial discovery)
- United States v. Procter & Gamble Co., 356 U.S. 677 (U.S. 1958) (federal discovery rules aim for liberal disclosure to avoid surprise)
- Rofail v. United States, 227 F.R.D. 53 (E.D.N.Y. 2005) (conclusory assertions that a party may tailor testimony do not establish good cause for delaying production)
- Costa v. AFGO Mech. Servs., Inc., 237 F.R.D. 21 (E.D.N.Y. 2006) (court may time production but movant bears burden to show good cause)
- Dove v. Atlantic Capital Corp., 963 F.2d 15 (2d Cir. 1992) (scope and nature of protective orders lie within district court discretion)
- Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230 (2d Cir. 1985) (discovery rules foster disclosure to level the playing field)