Tripathy v. Schneider et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
SANJAY TRIPATHY,
DECISION & ORDER
Plaintiff,
21-CV-6392FPG
v.
ANDREA N. SCHNEIDER, et al.,
Defendants.
_______________________________________
PRELIMINARY STATEMENT
Plaintiff Sanjay Tripathy (“Tripathy”) filed this action against defendants
pursuant to 42 U.S.C. § 1983, alleging that he was subjected to unconstitutional conditions of
confinement in violation of his Eighth Amendment rights while incarcerated at Gowanda
Correctional Facility.1 (Docket ## 1, 5, 7). On October 14, 2022, Tripathy filed a Second
Amended Complaint adding additional conditions of confinement claims against additional
defendants arising out of his subsequent incarceration at Fishkill Correctional Facility and
Collins Correctional Facility. (Docket ## 35, 36, 49).
Currently pending before this Court are several motions filed by the parties
concerning Tripathy’s discovery demands served in this matter. (Docket ## 97, 98, 112, 118,
124). Specifically, on March 9, 2023, Tripathy filed a motion to compel identifying disputes
concerning the defendants’ responses to his requests for admissions and documents demands.
(Docket # 97). The same day, defendants cross-moved for a conference with the Court to resolve
1 Tripathy also asserted Eighth Amendment inadequate medical care claims and claims pursuant to the
Americans with Disabilities Act, the Rehabilitation Act, and the Fourteenth Amendment, but those claims were
dismissed. (Docket ## 5, 7).
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 1 of 17

2
the parties’ discovery issues. (Docket # 98). On May 1, 2023, Tripathy filed a motion that this
Court interprets as seeking disqualification of defendants’ counsel and a protective order.
(Docket # 112). Four days later, Tripathy moved for the issuance of a non-party subpoena for
the deposition of Carol Moores, the Deputy Commissioner and Chief Medical Officer of the
New York State Department of Corrections and Community Supervision (“DOCCS”). (Docket
# 118). Finally, on September 8, 2023, Tripathy filed a second motion to compel. (Docket
# 124). These motions are discussed below.
I. 	Motions to Compel and for Court Conference (Docket ## 97, 98, 124)
The parties’ disputes primarily concern discovery demands propounded by
Tripathy in January 2023 and his supplemental demands served on April 28, 2023. (Docket
## 67, 110). Resolution of these relatively routine discovery disputes has been made
unnecessarily complicated by the parties’ failure to fulfill their obligations to confer in good faith
to attempt to resolve disputes before seeking court intervention, resulting in the multiple and
repetitive filings currently before the Court. (Docket ## 97, 98, 99, 104, 105, 110, 124, 126,
127).
On January 24, 2023, Tripathy served defendants with a request for production of
documents. (Docket # 67). Two days later, Tripathy served them with requests for admissions.
(Docket # 69). Defendants responded to the document demands and requests for admission on
February 21, 2023. (Docket ## 72-80). It appears that defendants served their responses to the
document requests both electronically and by mail. (Id.).
On February 24, 2023, Tripathy served a duplicate set of requests for admissions.
(Docket # 85). In his enclosure letter, Tripathy requested that defendants respond to the requests
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 2 of 17

3
for admissions without altering the language of the requests. (Id.). Defendants served their
responses to those requests on February 28, 2023. (Docket ## 87-94). Because Tripathy had
been granted leave to file electronically in this matter (Docket # 70), defendants served Tripathy
by filing the responses electronically but did not mail them to his address. (Docket # 98 at 2).
On March 9, 2023, at 11:39 a.m., Tripathy sent an email to counsel for defendants
identifying issues with defendants’ discovery responses and requesting a telephone conference to
discuss the disputes. (Docket # 97-4). Specifically, Tripathy indicated that he was unable to
access docket entries 87 through 94 on the Court’s electronic docket, and he requested that
defendants’ counsel email him timestamped copies of those filings. (Id.). He also asked to
discuss the “pending discovery requests” relating to “grievances, lawsuits, settlements, and
Defendants disciplinary records, and email/other communications pertaining to [his]
complaint/grievances between DOCCS Officials/Defendants.” (Id.). Tripathy also indicated that
he intended to retain two experts and to depose DOCCS’ Chief Medical Officer and the senior
medical staff for each of the three facilities. (Id.).
Defendants’ counsel, Muditha Halliyadde, Esq., responded at 11:47 a.m. and
indicated that there were “no pending discovery requests” and referred Tripathy to defendants’
February 21, 2023 responses to his document demands. (Id.). Tripathy responded at 12:03 p.m.
and informed Halliyadde that he was unable to access docket entry 80 and requested that she
email him a copy. (Id.). A moment later Tripathy also requested a copy of docket entries 87
through 94. (Id.). Approximately one hour later, at 1:13 p.m., on March 9, 2023, Tripathy filed
the pending motion to compel. (Docket # 97).
In his motion, Tripathy maintains that defendants responded to his requests for
admissions but failed to provide him with a courtesy copy. (Id.). He further maintains that he is
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 3 of 17

4
unable to access the documents on the Court’s electronic docket. (Id.). With respect to his
document demands, Tripathy maintains that defendants failed to produce several categories of
documents including “grievances, lawsuits, settlements, and Defendants disciplinary records, and
email/other communications pertaining to complaint/grievances between DOCCS
Officials/Defendants, DOCCS Covid-19 data for infections, hospitalizations, death, major
medical issues in the context of the complaint.” (Id.). Tripathy contends that he attempted to
confer in good faith with defendants’ counsel but was “unable to make headway” and requests a
Court conference to address the deficiencies. (Id.).
Defendants responded to Tripathy’s motion on March 9, 2023. (Docket # 98).
They likewise request a conference with the Court to resolve discovery issues. (Id.). Halliyadde
asserts that Tripathy has been granted permission to electronically file documents in this matter
and that defendants should not be responsible for providing him with time-stamped copies of
documents that are equally accessible to him. (Id.). She also represents that defendants have
provided written responses to all of Tripathy’s discovery demands. (Id.). Finally, she requests
that the Court “instruct [Tripathy] to refrain from communicating with Defense Counsel via
email.” (Id.). In her submission, Halliyadde did not address any of the specific discovery
disputes raised by Tripathy about “grievances, lawsuits, settlements, and Defendants disciplinary
records, and email/other communications pertaining to complaint/grievances between DOCCS
Officials/Defendants, DOCCS Covid-19 data for infections, hospitalizations, death, major
medical issues in the context of the complaint.”
Several days later, on March 16 and 17, defendants supplemented their responses
to Tripathy’s document demands. (Docket ## 102, 103). Specifically, defendants supplemented
their responses to Tripathy’s document requests 2 and 7, which sought information pertaining to
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 4 of 17

5
Covid-19 infections, quarantines, hospitalizations, testing, vaccines, and deaths at the relevant
facilities during the relevant time period (Demand No. 2) and complaints, grievances, and
lawsuits related to Covid-19 (Demand No. 7).
On March 31, 2023, Tripathy supplemented his motion to compel, contending that
defendants’ responses remain deficient despite their supplemental responses. (Docket # 104).
Defendants responded the same day; they argue that they fully responded to Tripathy’s discovery
demands and that it is unclear what other documents Tripathy seeks. (Docket # 105).
On April 28, 2023, Tripathy sent a letter to Halliyadde in an attempt to address
the outstanding discovery disputes. (Docket # 110). Halliyadde interpreted the letter as a second
set of document requests, and defendants responded on May 26, 2023, prompting Tripathy’s
second motion to compel. (Docket ## 121, 124). Review of Tripathy’s motion demonstrates
that some, but not all, of the concerns raised by Tripathy have been resolved. Stated another
way, only after multiple, repetitive filings with the Court were the parties’ disputes properly
narrowed and ripe for resolution by the Court.
Of course, the applicable rules of civil procedure require the parties to confer or
attempt to confer in good faith to try to resolve discovery disputes without court intervention
before filing a motion to compel. Fed. R. Civ. P. 37(a)(1). To verify that the requirement has
been satisfied, Rule 37(a)(1) obligates a party filing a motion to compel to “include a
certification” that the movant has in good faith conferred or attempted to confer with the
opposing party or counsel. Fed. R. Civ. P. 37(a)(1). The parties are reminded that they must
engage in good faith and genuine efforts to identify and resolve any disputes prior to seeking
Court intervention. The Court expects the parties to work cooperatively to resolve disputes prior
to seeking the Court’s involvement. I turn now to the narrowed issues before the Court.
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 5 of 17

6
A. 	Request for Court Conference
Several of the submissions relating to the discovery disputes request a conference
with the Court. (See, e.g., Docket ## 97, 98, 104, 124). Having reviewed the submissions, I
conclude that oral argument is not necessary and the issues properly before the Court may be
resolved on the submissions. Accordingly, any requests for a court conference are denied.
B. 	Timeliness of the Pending Motion
Defendants challenge Tripathy’s second motion to compel (Docket # 124) on the
grounds that it is untimely because it was filed after the court-ordered August 16, 2023 deadline
for motions to compel. (Docket # 126 at ¶ 4 (citing Docket # 62)). As the procedural history
recounted above shows, Tripathy raised many of the same discovery issues in his first motion to
compel, which was filed well before the deadline. On this record, I disagree with defendants that
the pending motions are untimely.
C. 	Courtesy Copies of Discovery Responses
The primary impetus behind the premature filing of Tripathy’s original motion to
compel appears to have been Tripathy’s inability to access the discovery responses that
defendants electronically served by filing them on this Court’s electronic docket. (Docket # 97).
Tripathy suggests that defendants are required to provide him with courtesy copies of their
electronic filings, while defendants maintain Tripathy is responsible for obtaining them through
the Court’s electronic docket. (Compare Docket # 97 at ¶ 1 with Docket # 98 at 2).
Rule 5 of the Federal Rules of Civil Procedure provides that a pro se litigant “may
file electronically only if allowed by court order or by local rule.” Fed. R. Civ. P. 5(d)(3)(B)(i).
The Local Rules of Civil Procedure for the Western District of New York incorporate by
reference the Court’s CM/ECF Administrative Procedures Guide (“the Guide”), which in turn
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 6 of 17

7
provides the requirements and procedures for electronic filing. See W.D.N.Y. Local Rule 5.1(a).
The Guide allows the Court, in its discretion, to “grant a pro se litigant who demonstrates a
willingness and capability to file documents electronically, permission to register to do so.”
W.D.N.Y. Administrative Procedures Guide for Electronic Filing, Administrative Procedures.
Such permission, however, “may be revoked at any time.” (Id.).
Pursuant to the Administrative Procedures Guide, users who register for
electronic filing “consent to the electronic service of all documents.” See W.D.N.Y.
Administrative Procedures Guide for Electronic Filing § 2(F)(i). Accordingly, because Tripathy
has been authorized as an electronic filer in this action, he has consented to electronic service of
all documents filed with the Court, and defendants are not required to send him courtesy copies
of those documents. To the extent Tripathy is unable to access any of the documents on this
Court’s electronic docket, he should contact the Clerk’s Office at (585) 613-4000, to obtain
assistance in accessing those documents.
D. 	Facility Visit Logs
Tripathy seeks to compel production of all “visit logs” for his dorm and the law
library at each facility throughout his entire period of incarceration. (Docket ## 104 at ¶ 14; 110
at ¶ 13; 124 at 3-4; 127 at ¶¶ 1-3). He also maintains that defendants should be required to
produce the handwritten logs in a text searchable format. (Id.). Tripathy alleges that throughout
his incarceration he complained to the defendants during times when they were present in his
dorm or in the law library. (Id.). Thus, Tripathy contends that the visit logs are relevant to
establish that he and the defendants were present in the same locations at the same time. (Id.).
In response to the request, defendants produced several logs from the Fishkill
facility, including the logbook signed by corrections officers entering or leaving the law library
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 7 of 17

8
and the logbook signed by inmates entering or leaving the dorm. (Docket ## 121 at ¶ 13; 121-5;
121-6; 121-7). Tripathy quarrels with the adequacy of the production because it omitted the
inmate “clerk” library visit log, which is the log he allegedly would have signed, and the logbook
recording corrections officers’ entries to and departures from the dorm area. (Docket # 124 at
3-4). Defendants counter that Tripathy’s request is unduly burdensome and would require
production of an additional 4,064 pages. (Docket # 126 at ¶¶ 11-12). Likewise, defendants
object to Tripathy’s request that the logbooks be produced in a text searchable format, noting that
they produced copies of the handwritten logbooks in the form in which they are maintained by
the facilities. (Id. at ¶ 14).
Defendants also objected to producing the requested logs from Collins and
Gowanda on the grounds that doing so would be unduly burdensome. (Docket # 126 at ¶¶ 8-9).
According to defendants, the requested visit logs consist of approximately 10,000 pages, most of
which include personal information relating to other incarcerated individuals that would need to
be redacted. (Id.). Defendants suggested that Tripathy narrow his request to specific dates on
which he maintains he interacted with the defendants. (Id.). According to Tripathy, he is unable
to identify any specific date, and he reiterates his request for the entire logs. (Docket # 124 at 3).
Rule 26 of the Federal Rules of Civil Procedure provides that the scope of
discovery is limited to information that is relevant to the parties’ claims and defenses “and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Pursuant to this rule,
“proportionality and relevance are ‘conjoined’ concepts; the greater the relevance of the
information in issue, the less likely its discovery will be found to be disproportionate.” Holland
v. Lions Gate Ent. & Films, 2023 WL 3554832, *2 (S.D.N.Y. 2023) (internal quotations
omitted). I agree with defendants that the log requests are not proportional to the needs of the
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 8 of 17

9
case. Production would be quite burdensome and the information sought has limited relevance
to the claims and defenses in this action. As defendants note, at most the logs would establish
that plaintiff and defendants were in the same vicinity, not that they interacted or the substance
of any such interaction. That said, defendants should not be permitted to prevent Tripathy from
resorting to the logs to establish that he was in the same location as the defendants if they intend
to offer testimony or other evidence denying that they ever were in proximity to Tripathy during
his incarceration. Accordingly, on or before November 30, 2023, defendants must either
produce the visit logs or stipulate that they will not contest that they were sometimes in the
same facility location as Tripathy.
I agree with defendants that they are not required to convert any of the
handwritten logs into a text searchable format.
E. 	Facility Mail Logs
Tripathy seeks an order compelling production of the mail logs at each facility
during his periods of incarceration. (Docket ## 104 at ¶ 14; 110 at ¶ 13; 124 at 4; 127 at ¶ 4).
According to Tripathy, he corresponded with each of the defendants and the mail logs, which he
understands reflect entries for internal and external mail sent by inmates, are relevant to establish
that he sent those communications. (Id.). Defendants responded, “[u]pon information and belief,
facilities do not maintain ‘sent mail logs’ to keep track to whom incarcerated individuals send
mail.” (Docket # 126 at ¶ 15). Tripathy counters that, to the best of his knowledge, “mail logs
are maintained in the mail room for internal/external mail by inmates.” (Docket # 127 at ¶ 4).
Although the Court cannot compel production of documents that do not exist,
Breedlove v. Mandell, 2008 WL 596864, *2 (W.D.N.Y. 2008) (denying motion based on party’s
representation that it had no record of requested document because the “[c]ourt cannot compel
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 9 of 17

10
production of what does not exist”) (quoting Am. Banana Co. v. Republic Nat’l Bank of New
York, N.A., 2000 WL 521341, *3 (S.D.N.Y. 2000)), defendants’ counsel’s representation based
upon information and belief, rather than upon personal knowledge, is not sufficient to establish
that the logs are not within the possession, custody, and/or control of the defendants.
Accordingly, on or before November 30, 2023, defendants must provide an affidavit from
someone with personal knowledge to attest that a diligent search for each facility’s mails
logs has been conducted and that no responsive documents were located.
F. 	Audit Records
In his most recent motion to compel, Tripathy seeks an order compelling
defendants to produce “Medical and Covid-19 Audit Records,” including internal or outside
audits. (Docket # 124 at 4-5). Although Tripathy does not specifically identify the request that
seeks this information, he likely seeks it in response to his demand for “any and all documents,
information and data pertaining to any Covid-19 experts, studies, compliance and operational
audits by experts, staff, government officials, or third parties, especially at Gowanda, Fishkill
and Collins.” (Docket # 80 at ¶ 5).
Defendants maintain that there are no Covid-19 medical audits that have been
conducted by DOCCS. (Docket # 126 at ¶ 16). Of course, the demand by Tripathy also seeks
audits conducted by outside agencies or persons. Accordingly, on or before November 30,
2023, defendants must provide an affidavit from someone with personal knowledge to
attest that a diligent search for all medical Covid-related audits at the relevant facilities has
been conducted and that all responsive information in the possession, custody, and/or
control of the defendants has either been produced or that responsive information was not
located. To the extent any responsive information exists but defendants object to
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 10 of 17

11
producing such information, they must clearly state the basis of their objections and that
they are withholding responsive information on the basis of those objections.
G. 	Covid-Related Grievances and Complaints
Tripathy seeks to compel additional information in response to two of his
document demands:
[C]opies of all grievances and appeals related to Covid-19, as well
as any decisions made in the relevant period.
[A]ny information regarding settlements, lawsuits, and complaints
related to medical issues that have occurred within the last 5 years.
(Docket # 110 at ¶¶ 10, 11). In response, defendants produced Tripathy’s grievances relating to
Covid-19, as well as documents reflecting the response to those grievances and the subsequent
appeals. (Docket ## 23 at 2; 23-1 at 19-86; 51; 59). Defendants also provided a list of
Covid-related grievances that had been appealed and resolved by the Central Office Review
Committee (“CORC”). (Docket ## 102 at 23-25; 121 at ¶ 10; 126 at ¶ 17). Finally, defendants
provided a list of Covid-related lawsuits. (Docket ## 102 at 26; 121 at ¶ 11).
Defendants have represented that there have been “no settlements made with
regard to Covid-19 matters” and have objected to providing all Covid-related grievances on the
grounds that to do so would be unduly burdensome and that such documents contain personal,
confidential, and HIPPA-protected information concerning other inmates. (Docket # 121 at
¶ 11). According to defendants, because grievances are maintained in each individual inmate’s
file and are not organized by subject matter, production of such grievances would impose a
significant burden. (Id.). Moreover, because the grievances concern Covid-related complaints,
they likely contain sensitive medical information of the grievant. (Id.).
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 11 of 17

12
Tripathy maintains that production of a list of CORC decisions is underinclusive
because many grievances are not appealed to CORC. (Docket # 127 at ¶ 6). Additionally, he
contends that he requires the documents underlying the CORC decisions, not merely a list of
those grievances that resulted in a CORC determination. (Id.). With respect to confidentiality
concerns, Tripathy suggests that personally-identifying information may be redacted prior to
production. (Id.).
I agree with defendants that limiting production to the CORC Covid-related
determinations is appropriately proportional to the needs and issues raised by this case. See
Reyes v. Wenderlich, 2017 WL 1176085, *3 (W.D.N.Y. 2017) (“[plaintiff’s] request for all
grievances against the defendants is overly broad and not proportional to the needs and issues
raised by the litigation”). I agree with Tripathy, however, that a list of those decisions without
production of the CORC determinations and related underlying documents does not provide
Tripathy with the relevant information he seeks in support of his claims. Accordingly, on or
before November 30, 2023, defendants shall produce the CORC determinations and related
underlying documents associated with the list of CORC appeals previously produced by
defendants (Docket # 102 at 23-25). Prior to production, defendants shall redact all
personally-identifiable or medically-sensitive information from the documents.
H. 	Covid-Related Communications
Tripathy also seeks to compel defendants to produce:
[A]ny emails and communications related to Covid-19, particularly
those related to policy implementation, challenges, and failures.
This encompasses communications with experts, government
agencies, local agencies, and any other pertinent parties during the
relevant period. This information is required for all Defendants
and DOCCS Albany Staff.
(Docket # 127 at ¶ 7).
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 12 of 17

13
Defendants have objected to this request on the grounds that it is overbroad and
unduly burdensome. (Docket # 126 at ¶ 18). According to defendants, they have already
produced all Covid-related “protocols, policies, and procedures,” including the “protocols
followed by DOCCS facilities and [the] implementation of such protocols.” (Docket ## 80 at
¶ 3; 105 at ¶ 6). With respect to production of emails and internal communications, defendants
maintain that a request for any communications relating to Covid-19 is extremely broad and that
any search for such communications would result in the identification of “thousands of emails,”
many of which would have little relevance to the issues in this litigation. (Docket # 126 at ¶ 18).
I agree with defendants that Tripathy’s request as drafted is overbroad; his
subsequent submissions do not narrow the requests or articulate the precise information he is
seeking that is absent from the documents already produced to him. Accordingly, I deny
Tripathy’s motion to compel a further response to this demand.
II. 	Motion for Disqualification and for Protective Order (Docket # 112)
Several of Tripathy’s submissions complain about Halliyadde’s conduct in
litigating this matter, accusing her of being “derogatory, rude, and unprofessional” and acting in
bad faith. (See generally Docket ## 99, 104, 112, 124). Tripathy’s primary complaint appears to
be Halliyadde’s expressed preference for communicating with him by mail, rather than by email
or telephone. Tripathy also accuses Halliyadde of purposefully delaying defendants’ discovery
productions and limiting defendants’ production with the intent of “obfuscating” his “legitimate
discovery demands.” (Docket # 124 at 6).
To the extent that Tripathy’s submissions can be interpreted as requesting the
disqualification of Halliyadde (see, e.g., Docket # 112 at 4 (asking the Court to intervene by
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 13 of 17

14
requesting the New York State Attorney General “to appoint alternate [d]efense counsel”)), that
request is denied. The Court further declines to order that the parties confer in the manner
proposed by Tripathy. According to Halliyadde, Tripathy engaged in a “practice” of sending
“hasty emails” and expecting “swift responses to his emails from defense counsel.” Halliyadde
communicated to Tripathy her preference that their conferrals be conducted through written
correspondence sent by mail. (Docket ## 105 at ¶ 22; 114 at 1-2).
Review of the record demonstrates little support for Tripathy’s allegations of
improper conduct by Halliyadde. Although her initial response to his request to confer was terse,
as the procedural history summarized above demonstrates, Tripathy filed his first motion to
compel within two hours of Halliyadde’s email response. (Docket ## 97; 105 at 12-15). On this
record, I decline to compel Halliyadde to communicate by email or telephone; old-fashioned
communication through written correspondence is sufficient and may help to ensure that disputes
are addressed in an ordered and organized manner, rather than in a piecemeal fashion.
To the extent Tripathy’s submissions can be interpreted to seek a protective order
precluding defendants from obtaining information relating to his underlying conviction (see, e.g.,
Docket ## 104 at ¶ 4; 110 at ¶ 3; 112 at ¶ 3), that request is also denied. Tripathy maintains that
Halliyadde has improperly requested information concerning the crimes for which Tripathy was
incarcerated. (Docket # 104 at ¶ 4). According to Tripathy, his conviction now has been
reversed and he has been “exonerated.” (Id.). Thus, he maintains, the underlying crime is not
relevant to the issues being litigated in this matter. (Id.). Halliyadde’s response does not address
the relevance of Tripathy’s criminal conviction and indicates she is unable to respond because it
is unclear when she requested such information from Tripathy. (Docket # 114 at 2). In reply,
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 14 of 17

15
Tripathy maintains that Halliyadde repeatedly asked about his conviction during his deposition,
the transcript of which, he contends, is available on the electronic docket.2 (Docket # 116 at ¶ 2).
“The burden is on the movant to demonstrate the necessity for the issuance of a
protective order.” Marseet v. Rochester Inst. of Tech., 2023 WL 1097969, *7 (W.D.N.Y. 2023)
(internal quotations omitted). The submissions before the Court do not provide any information
concerning Tripathy’s conviction, nor has Tripathy provided any evidence to support his
assertions that his conviction was reversed or that he has been “exonerated.” In addition, without
further information, the Court cannot determine whether information about the crimes for which
he was prosecuted might lead to the discovery of relevant information, even if the conviction or
charges may be determined to be inadmissible at trial. Accordingly, on the record before the
Court, Tripathy has not satisfied his burden of establishing his entitlement to a protective order
with respect to information about his underlying conviction.
III. 	Motion for Non-Party Subpoena (Docket # 118)
Finally, I turn to Tripathy’s request that the Court issue a subpoena to nonparty
Carol Moores, the Deputy Commissioner and Chief Medical Officer for DOCCS. (Docket
# 118). Tripathy contends that Moores, as Chief Medical Officer for DOCCS, could provide
information concerning DOCCS’s agency-wide Covid-19 policies and procedures. (Docket
# 120 at ¶ 2). Defendants oppose the motion on the grounds that, to the extent Tripathy intends
to conduct a deposition concerning DOCCS’s state-wide policies, he should serve a deposition
notice pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, which would permit
DOCCS to designate the appropriate deponent or deponents. (Docket # 119).
2 Tripathy also maintains that information concerning his conviction was included in defendants’ motion
for summary judgment. (Docket # 116 at ¶ 2). That motion was denied without prejudice by the district court.
(Docket # 108).
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 15 of 17

16
Regardless of the merits of defendants’ position, Tripathy represents that he
intends to depose the party defendants concerning the Covid-19 policies implemented at each of
the three facilities. (Docket # 120 at ¶ 1). He should do so if he still wishes to take depositions.
Following those depositions, if he still believes a deposition of Moores is appropriate, he may so
move and explain why additional testimony from her would be relevant and important to his
claims. Accordingly, Tripathy’s motion is denied without prejudice to renewal following
depositions of party defendants.
IV. 	Amended Scheduling Order
By Order dated October 27, 2023, this Court stayed its December 15, 2022
Amended Scheduling Order (Docket # 62) in order to resolve the various discovery disputes
pending before the Court. (Docket # 129). Having now resolved those disputes, by separate
order, the Court will set new deadlines to govern this litigation.3
CONCLUSION
For the reasons discussed above, the parties’ discovery motions (Docket ## 97,
98, 124) are DENIED in part and GRANTED in part, Tripathy’s motion for disqualification
and a protective order (Docket # 112) is DENIED, and Tripathy’s motion for a nonparty
subpoena (Docket # 118) is DENIED without prejudice. On or before November 30, 2023,
defendants shall comply with the directives set forth herein. As stated above, the parties are
3 After the Court’s Order staying the scheduling order, Tripathy served additional requests for admission,
to which defendants objected on the grounds that they were served after the discovery deadline set forth in the
December 15, 2022 Amended Scheduling Order. (Docket ## 130, 131, 132). As discussed above, Tripathy’s
discovery concerns were raised long before the discovery deadline, and if defendants’ timeliness objections to
Tripathy’s requests for admissions were presented to the Court by formal motion, the Court would be disinclined to
uphold them.
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 16 of 17

17
reminded that they must engage in good faith and genuine efforts to identify and resolve any
disputes prior to seeking Court intervention.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
November 9, 2023
Case 6:21-cv-06392-FPG-CDH Document 133 Filed 11/09/23 Page 17 of 17