Ballard v. Dzurenda et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DONTRA BALLARD,
Plaintiff,
ORDER
-against-
20-cv-05241 (MKB) (JMW)
JAMES DZURENDA, Sheriff, et al.,
Defendants.
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A P P E A R A N C E S:
Aishling Fitzpatrick
Marisa L. Manzi
King & Spalding LLP
1290 Avenue of the Americas, Fl 14
New York, NY 10104
-and-
Mara Fleder
Wertheimer Fleder LLP
14 Wall Street, Ste 4c
New York, NY 10005
Attorneys for Plaintiff
Steven V. Dalton
Office of the County Attorney
1 West St
Mineola, NY 11501
Attorney for Defendants
WICKS, Magistrate Judge:
Plaintiff Dontra Ballard (“Plaintiff”) commenced this action, initially pro se, asserting
three causes of action against the Defendants1 (the “Defendants”) for excessive force, deliberate
1 Defendants include (i) Sheriff James Dzurenda, (ii) Captain Donnahue, and (iii) the following Special
Emergency Response Team (“SERT”) offers: Sergeant Peter Lilli, Shield #139; Corporal Emmanuel
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indifference, and cruel and unusual punishment in violation of the Eighth Amendment for the
alleged incidents that occurred at the Nassau County Correctional Center (“NCCC”). (See ECF
Nos. 60, 161.) Plaintiff appeared pro se for almost five years, but in August of 2025, counsel
filed an appearance on behalf of Plaintiff. Since counsel recently appeared in this matter on
behalf of Plaintiff, the Court allowed further limited discovery. (See ECF Nos. 136, 182.)
The parties are now before the Court, pursuant to Federal Rule of Civil Procedure 37, on
Plaintiff’s motion for discovery sanctions against the Defendants for their failure to respond to
Plaintiff’s interrogatories and document demands. The final discovery deadline of December 31,
2025 was set by the Court’s September 1, 2025 Order (the “September Order”) (See ECF Nos.
185, 189.)
Plaintiff seeks fees and expenses for Plaintiff’s extensive efforts in attempting to secure
discovery from Defendants and for the time and expense incurred in the preparation of this
motion. (See ECF No. 189 at 1, 6.) Defendants freely admit not producing discovery
notwithstanding the court-ordered deadline. They oppose on the grounds that non-production is
not based on willfulness and Defendants have “undertaken diligent efforts to meet its discovery
obligation[s].” (ECF No. 191.) A hearing was held on February 19, 2026. (See Electronic Order
dated 2/19/2026.) For reasons that follow, Plaintiff’s Motion for Sanctions (ECF No. 189) is
GRANTED. Defendants are hereby directed to reimburse Plaintiff the costs and attorneys’ fees
associated with the filing of the instant motion.
Boudouris, Shield # 370; Corporal Robert Imhof, Shield #296; Corrections Officer Paul Voight, Shied
#2159; Corrections Officer Mathew Grange, Shield # 2619; Corrections Officer Alfonzo Incammaicia,
Shield #2723; Corrections Officer Robert Murray, III, Shield #2897; Corrections Officer Joseph Greco,
Shield # 2719; Corrections Corporal Joseph Ganun, Shield #358; Corrections Officer Kieran Kirk, Shield
# 3063; and Corrections Officer Brian Herold, Shield # 3186.
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RELEVANT BACKGROUND
While this case was trial ready, following the pretrial conference, Hon. Chief Judge
Margo K. Brodie referred the parties to the undersigned for a settlement conference. (See
Electronic Order dated 6/24/2025.) The settlement conference was held with Plaintiff appearing
pro se but the case did not resolve. (See Electronic Order dated 7/23/2025.) Shortly thereafter,
Plaintiff retained pro-bono counsel, and the Court held a status conference. At that conference,
the parties discussed Defendant providing discovery to Plaintiff's new counsel. (ECF No. 182.)
The parties were also directed to propose a new limited discovery schedule, and the following
schedule was set: (i) all fact discovery is to be completed by December 31, 2025, and (ii) all
discovery, including expert discovery shall be completed by March 13, 2026. (ECF No. 183;
Electronic Order dated 9/1/2025.) While the Court was led to believe discovery was moving
apace, Plaintiff moved for a pre-motion conference stating that,
(i) 	Plaintiff served requests for the production of documents and interrogatories on
September 19, 2025, and September 22, 2025, via email to the prior two lead
attorneys, who are no longer with the County,
(ii) 	Plaintiff’s counsel was not able to reach counsel for Defendants despite numerous
emails and calls to various attorneys at the Nassau County Attorney’s Office, until
“finally making contact” with another attorney, and serving them with the requests,
(iii) 	Defendants were to provide responses or objections by October 22, 2025, as agreed
upon and failed to do so, and
(iv) 	Defendants were to provide production or “substantially complete the requests” by
November 21, 2025, as agreed upon and failed to do so.
(See ECF No. 185.)
Nicholas Zotto then appeared as new counsel for Defendants and requested an extension
of time to complete discovery, which was denied with leave to renew. (ECF Nos. 186-87;
Electronic Order dated 12/3/2025.) The Court held a pre-motion conference to address the
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extension request and the anticipated discovery sanctions motion. At the conference, Steven
Dalton (not Nicholas Zotto), appeared on behalf of the County. Mr. Dalton did not seek an
extension of time to complete discovery and candidly informed the Court that discovery still had
not been produced. (See Electronic Order dated 12/15/2025.) Given those circumstances, the
Court entered a briefing schedule on the instant motion. (Id.) The instant motion was fully
briefed as of January 30, 2026. (ECF Nos. 189, 191-92.)
According to Plaintiff, to date, Defendants have neither produced the discovery nor
responded to interrogatories. (See ECF No. 192 at 2.) (“Nevertheless, even since defense
counsel’s participation in the December 15, 2025 conference, Defendants have not completed
document productions, addressed any of the deficiencies in the existing productions identified by
Plaintiff’s counsel, or even responded to Plaintiff’s September 22, 2025 interrogatories.”)
Defendants admit discovery is not complete. Rather, Defendants argue that the instant
application should be denied “because the incompleteness of discovery and the noncompliance
with the Order is not a result of willfulness on the part of Nassau County and the County has
undertaken diligent efforts to meet its discovery obligations.” (ECF No. 191 at 2.) Indeed, at oral
argument, the Court was informed that there has been no production or responses provided since
the filing of the instant motion. The conduct exhibited in this case by Nassau County has become
all too familiar. See e.g., H.B. by Lotrean v. Cnty. of Suffolk et al., No. 24-CV-07067 (SJB)
(JMW), 2025 WL 3653499, at *3 (E.D.N.Y. Dec. 17, 2025) (granting motion for discovery
sanctions against Nassau County); Kosowski v. Nassau Cnty., 350 F.R.D. 346, 355 (E.D.N.Y.
2025) (finding Nassau County in contempt for failure to comply with discovery orders); see also
Hasper v. County of Nassau et. al., Case No. 2:20-cv-02349-RER-LGD, ECF No. 97 (where the
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Hon. Lee G. Dunst held a status conference of multiple cases involving Nassau County to
address the “history of delays” in those cases). 2
THE LEGAL FRAMEWORK
“The imposition of sanctions under Rule 37 lies within the broad discretion of the district
court.” Perros v. Cnty of Nassau, CV 15-5598 (GRB)(AKT), 2021 WL 4480666, at *7
(E.D.N.Y. Sep. 30, 2021) (noting that “Rule 37 is most relevant when a party fails to comply
with a court order to produce discovery or fails to produce to an adversary relevant, requested
information”) (internal quotation and citation omitted); see also Charles v. Cnty. of Nassau, 116
F. Supp. 3d 107, 121 (E.D.N.Y. 2015) (“Failure to timely produce documents during the
discovery period is a violation of discovery rules, subject to sanctions pursuant to Rule 37.”);
Samonte v. Wanat, No. 13-CV-226 (MKB), 2014 WL 1817605, at *6 (E.D.N.Y. May 6, 2014)
(same). With this discretion, the Court is afforded a wide panoply of options once it is
determined that discovery sanctions are warranted. “Rule 37 provides a district court with a wide
range of sanctions which it may apply to a wide range of circumstances – potential sanctions
extend from payment of expenses and similar monetary sanctions at one end of the spectrum to
default judgment on the other.” Abante Rooter & Plumbing, Inc. v. Shore Funding Sols., Inc.,
No. 17-CV-6499 (ADS)(AKT), 2019 WL 2436239, at *5 (E.D.N.Y. Mar. 6, 2019), report and
recommendation adopted, 2019 WL 1986606 (E.D.N.Y. May 6, 2019).
When a party exhibits misconduct that warrants a sanction, but the misconduct is not as
offensive as to warrant striking of the answer and entry of default, courts will impose other, less
draconian sanctions. See, e.g., Abante Rooter & Plumbing, Inc. 2019 WL 2436239, at *6.
2 Notwithstanding the history outlined here, the Court does recognize that Mr. Dalton and the County
have since recently taken steps to rectify the deficiencies in this and other cases which this Court sees and
appreciates.
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(“[T]he Court concludes that a default judgment as a sanction under Rule 37 would not be
appropriate in the instant circumstances. However ... in the absence of any justification for
[Defendant's] conduct, it is clear to the Court that some form of sanction under Rule 37 is
appropriate”); Airlines Reporting Corp. v. Grecian Travel, Inc., 170 F.R.D. 351 (E.D.N.Y. 1995)
(“Here, [Defendant's] actions do not quite reach the level where such extreme sanctions should
be imposed ... [Defendant's] dilatory behavior warrants an order compelling discovery”).
Rule 37 authorizes sanctions in the form of “directing that the matters embraced in the
order or other designated facts be taken as established for purposes of the action, as the
prevailing party claims,” “prohibiting the disobedient party from supporting or opposing
designate claims or defenses, or from introducing designated matters in evidence,” and “striking
pleadings in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(i)-(iii). Moreover, pursuant to Fed. R.
Civ. P. 37(d), the court may order sanctions if “a party, after being properly served with
interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers,
objections, or written response.” Fed. R. Civ. P. 37(d)(1)(A)(ii). Under this provision, sanctions
include “any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)” in addition to “reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure was substantially justified, or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(1)(3).
“The two predicates to the imposition of sanctions under Rule 37(b) are (1) a ‘court order
directing compliance with discovery requests,” and (2) “non-compliance with that order[.]’” In
re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, 673 F. Supp. 3d 345, 356
(S.D.N.Y. 2023) (quoting Shanghai Weiyi Int'l Trade Co. v. Focus 2000 Corp., No. 15-CV-3533
(CM) (BCM), 2017 WL 2840279, at *9 (S.D.N.Y. June 27, 2017)). “A party that fails to
cooperate in discovery or comply with court orders is subject to sanctions under Rule 37 of the
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Federal Rules of Civil Procedure.” Stavola v. Macro Digital Tech. Corp., No. 24-CV-00026
(GRB) (JMW), 2025 WL 2466991, at *1 (E.D.N.Y. Aug. 27, 2025) (quoting Allied 100, LLC v.
Chadha, No. 20-CV-03493 (AMD) (PK), 2021 WL 7184241, at *6 (E.D.N.Y. July 26, 2021)).
Importantly, “[b]ad faith” is a pre-condition for imposing sanctions under the Court's inherent
power whereas a showing of bad faith is not required under Rule 37. Pincus Law Group, PLLC,
v. Majenica Lynn Springer & MJ Connections Inc., No. 23-CV-05528 (SJB) (JMW), 2026 WL
323048, at *7 (E.D.N.Y. Feb. 6, 2026) (quoting CSL Silicones Inc. v. Midsun Group Inc., No.
14-cv-01897 (CSH), 2016 WL 3568173, at *5 (D. Conn. June 27, 2016)). It follows, therefore,
that “Rule 37 sanctions ... may be imposed ‘notwithstanding a lack of willfulness or bad faith
....” Id. (quoting Richards v. Kallish, No. 22-cv-9095 (CS) (VR), 2024 WL 180869, at *6, n.8
(S.D.N.Y. Jan. 17, 2024)).
It is against this backdrop that the Court considers Plaintiff’s motion for sanctions.
DISCUSSION
Defendants freely and unabashedly admit to their failure to comply with this Court’s
September Order (see ECF No. 183). (See ECF No. 191 at 2; Electronic Order dated 9/1/2025.)
Defendants aver that the County “has undertaken diligent efforts to provide the required
discovery to the plaintiff. Those efforts included reaching out to the Sheriff’s Department and
personally going to retrieve the files so that the documents could be scanned and provided to
opposing counsel … [and] provided the entirety of the documents provided to me by the
Sheriff’s Department within hours of my receiving the documents.” (Id. at 2-3.) However, to
date, all responses and documents have not been produced. See McNamee v. Clemens, No. 09-
CV-1647 (SJ), 2014 WL 12775660, at *4 (E.D.N.Y. Jan. 30, 2014) (finding defendant’s decision
not to produce responsive documents in violation of the court’s order amounted to sanctionable
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conduct). Thus, Plaintiff brings this instant motion seeking (i) an award of fees and expenses for
his efforts to engage with Defendants and in preparing this motion, and (ii) compelling
Defendants to respond to discovery requests. (ECF No. 189 at 6.)
Accordingly, finding noncompliance with the September Order directing compliance
with discovery requests, the next step is to fashion an appropriate remedy. See In re Keurig
Green Mountain Single-Serve Coffee Antitrust Litigation, 673 F. Supp. 3d at 360 (analyzing
whether monetary sanctions are appropriate after determining defendants failed to comply with
prior courts orders).
In light of Defendant’s recalcitrant conduct, pursuant to Rule 37, the Court orders the
following: first, Defendants are compelled to produce all outstanding discovery, namely the
requested document production and responses to the September 22, 2025 interrogatories, by
March 6, 2026, and file a letter on ECF confirming their compliance. To the extent that
documents do not exist or are not found, Defendants are directed to provide Plaintiff a so-
called Jackson affidavit with respect to those documents by March 6, 2026.3 Furthermore, all
objections to the discovery demands have been waived, which Defendants’ counsel on the
record. See Fed. R. Civ. P. 34(b)(2); see also Tedaldi v. Am. Paving Inc., No. 24-CV-5011 (SJB)
(JMW), 2025 WL 1349033, at *2 (E.D.N.Y. Apr. 23, 2025) (collecting cases on this principle);
C.K. through P.K. v. Bassett, No. 22-CV-1791 (BMC)(JMW), 2023 WL 4086333, at *5
3 A “Jackson affidavit” refers to an affidavit or declaration filed by a party that claims that the documents
sought do not exist. The affidavit, deriving its name from a New York state case Jackson v. City of New
York, 586 N.Y.S.2d 952 (N.Y. App. Div. 1st Dep't 1992), should include statements that (i) a thorough
search has been conducted where the documents would likely reside, (ii) the results of the search, and (iii)
an explanation of where and how the documents would have been maintained. Therefore, Defendants in
their "Jackson Affidavit" shall detail the good faith search efforts taken to obtain the requested
documents, explaining, at a minimum, where these records were likely to be kept, what efforts were made
to preserve them, whether these records were routinely destroyed, or whether a search has been conducted
in every location where the records were likely to be found.
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(E.D.N.Y. June 20, 2023) (same); Eldaghar v. City of New York Department of Citywide
Administrative Services, No. 02-CV-9151 (KMW) (HBP), 2003 WL 22455224, at *1 (S.D.N.Y.
Oct. 28, 2003) (“If a party fails to file timely objections to document requests, such a failure
constitutes a waiver of any objections which a party might have to the requests.... Any other
result would ... completely frustrate the time limits contained in the Federal Rules and give a
license to litigants to ignore the time limits for discovery without any adverse consequences.”).
Accordingly, objections –with the exception of any privileged matters – are waived. See Fed. R.
Civ. P. 34(b)(2).
Plaintiff also requests an award of fees and expenses pursuant to Fed. R. Civ. P. 37(a)(5)
for efforts made to engage with Defendants and in preparing this motion as well as compelling
Defendants to respond to Plaintiff’s requests “by February 2”4 and certifying their search. (ECF
No. 189 at 6.)
Fed. R. Civ. P. 37 explicitly provides that if a discovery motion is granted, a court must
require the non-compliant party to pay attorney’s fees or the moving party’s reasonable
expenses. See Fed. R. Civ. P. 37(a)(5); see also Adler v. Sonotec US Inc., No. 23-CV-1634
(GRB) (ST), 2025 WL 2614993, at *9 (E.D.N.Y. Sept. 10, 2025) (citing Fed. R. Civ. P.
37(a)(5)(A) (“when a discovery motion is granted pursuant to Rule 37, the Court must ‘require
the party ... whose conduct necessitated the motion, the party or attorney advising that conduct,
or both to pay the movant's reasonable expenses incurred in making the motion, including
attorneys’ fees.’”)). At bottom, if a party disobeys a court order to produce discovery, “the court
must order the disobedient party, the attorney advising that party, or both to pay the reasonable
4 This date is impracticable given that the instant motion was only fully briefed only on January 30, 2026,
and argued on February 19, 2026.
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expenses, including attorney's fees, caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).
Here, the imposition of costs is appropriate and required under Rule 37. Plaintiff was
compelled to expend time and resources in a futile attempt to secure Defendants’ compliance to
produce discovery that should have been disclosed. Defendants do not offer substantial
justification or other circumstances to excuse their noncompliance. As such, an award of fees is
appropriate under the circumstances. See Stavola v. Macro Digital Tech. Corp., No. 24-cv-00026
(GRB) (JMW) , 2025 WL 2240297, at *7 (E.D.N.Y. Aug. 6, 2025) (granting motion to compel
discovery responses and determining an award of attorneys fees was appropriate in light of the
time spent meeting with opposing counsel, addressing extensions of time to respond to
interrogatories, and filing the motion to compel); see also Ritchie Risk-Linked Strategies Trading
(Ir.), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 162-63 (S.D.N.Y. 2012) (ordering plaintiff to
pay reasonable attorneys’ fees and costs incurred in making the motion to compel and costs
associated with the additional discovery); Adler, 2025 WL 2614993, at *9 (granting fees for a
discovery motion). Moreover, counsel for Defendants points to no “substantial justification” or
“other circumstances” as to why an award of costs and fees incurred in bringing the motion for
discovery sanctions would be unjust. See Sadowski v. Yeshiva World News, LLC, No. 21-cv-7207
(AMD) (MMH), 2023 WL 6812273, at *2 (E.D.N.Y. Oct. 16, 2023) (quoting Republic of
Guatemala v. IC Power Asia Dev. Ltd., No. 22-cv-394 (CM) (JW), 2023 WL 3294277, at *3
(S.D.N.Y. May 5, 2023) (determining plaintiff was entitled to reasonable attorney's fees where
there was “nothing to suggest” substantial justification or “that any other circumstances exist that
would make an award of fees unjust”)). Accordingly, Plaintiff is entitled to reasonable attorneys’
fees and expenses incurred in bringing this motion. See Hunter v. City of New York, No. 12-CV-
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6139 (MKB), 2021 WL 4942769, at *8 (E.D.N.Y. Oct. 22, 2021) (granting a sanctions motion
and thereafter awarding attorneys’ fees). Counsel for Plaintiff is directed to submit a declaration
or affidavit setting forth the basis for costs and attorneys’ fees, with the appropriate supporting
documentation.
CONCLUSION
For the reasons stated herein, Plaintiff’s Motion for Discovery Sanctions (ECF No. 189)
is GRANTED. In addition,
1. 	Defendants are compelled to produce the outstanding discovery by March 6, 2026, and
file a letter on ECF confirming their compliance.
2. 	Counsel for Plaintiff is directed to submit an attorney’s affidavit or declaration setting
forth the basis for costs and attorney’s fees, with the appropriate supporting
documentation, on or before February 27, 2026;
3. 	Any opposition to the fees requested shall be filed on or before March 6, 2026.
Dated: Central Islip, New York
February 19, 2026
S O 	O R D E R E D:
/s/ James M. Wicks
JAMES M. WICKS
United States Magistrate Judge
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