281 F.R.D. 122
S.D.N.Y.2012Background
- Pegoraro sues City, HHC, and officials alleging retaliation for whistle-blowing.
- Magistrate Judge Fox ordered production of IG notes/reports and certain responses; Defendants objected.
- Court adopts the Magistrate’s Order, granting in part and denying in part Pegoraro’s motion to compel.
- Dispute centers on scope of discovery, relevance, and law enforcement/investigative privilege.
- Court reviews procedures under Fed. R. Civ. P. 26(b)(1), 30, 33, and 34, and applicable Local Rules.
- Court finds substantial basis for compelled production of some items and denial of others; no sanctions awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must defendants answer Interrogatory No. 1? | Interrogatory seeks lawsuits against HHC for whistle-blower retaliation since 2007. | Overbroad and burdensome; outside Local Rule 33.3 scope. | Yes, must answer; relevant and reasonably calculated to lead to admissible evidence. |
| Is Interrogatory No. 6 regarding Moynihan privileged or irrelevant? | Requests information about IG notes concerning Pegoraro’s/ Moynihan’s complaints; relevant to retaliation. | Portion about Moynihan irrelevant; privilege may apply to IG materials. | Partly answered: information about Pegoraro’s IG complaints must be produced; Moynihan portion deemed irrelevant. |
| Can the plaintiff depose high-level officials (Aviles, Raju, Lee, Panarella) now? | Need deposition to probe termination and related actions. | High agency officials and ongoing OIG investigation; deposition would disrupt investigations. | Not compelled; depositions limited by timing and ongoing investigations; no broad allowance. |
| Whether certain interrogatories and document requests are overbroad or privilege-protected? | Requests cover relevant whistle-blower context and omissions by Marrero/HHC. | Many requests are overbroad, duplicative, or protected by law enforcement/investigative privilege. | Partial grant: some requests must be answered (e.g., Interrog. 1, 6 part, 24; Doc. 14, 19 part); others denied or narrowed. |
| Is the motion to compel discovery timely and properly grounded? | Requests were filed as part of discovery; some responses pending. | Requests late and prejudicial; discovery closed; high officials involved. | Equitable considerations favor the court’s partial grant of relief; not barred as untimely. |
Key Cases Cited
- United States v. Myerson, 856 F.2d 481 (2d Cir. 1988) (law enforcement privilege; balanced against need for information)
- United States v. Nixon, 418 U.S. 683 (U.S. 1974) (balancing disclosure vs. privilege and public interest)
- Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106 (2d Cir. 1992) (broad scope of discovery; information reasonably calculated to lead to admissible evidence)
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (U.S. 1978) (scope of discovery and admissibility standard in civil procedure)
- Davis v. Wakelee, 156 U.S. 680 (U.S. 1895) (equitable estoppel principle in discovery timing)
- Dinler v. The City of New York, 607 F.3d 923 (2d Cir. 2010) (burden on asserting law enforcement privilege; need for privilege log)
- Jacoby v. Hartford Life & Accident Ins. Co., 254 F.R.D. 477 (S.D.N.Y. 2009) (avoidance of boilerplate objections; specificity required for objections)