Magistrate Judge Cheryl Pollak.

U.S. Magistrate Judge Cheryl Pollak of the Eastern District of New York delivered a searing recommendation for sanctions against New York City over what Pollak called “an unprecedented and disturbing pattern of delay and failure to comply” with court orders.

The report and recommendation in Martinez v. City of New York, 16-cv-00079, outlines a multiyear legal battle that began when police arrested the plaintiff, Rosie Martinez, during a drug bust in late January 2015. Martinez claims that, during questioning at the 107 Precinct in central Queens, officers choked her, hit her and violently bent her fingers back, causing permanent injury to her right hand. She alleges she was denied medical care until she was transferred to central booking the next day.

Police have denied the allegations, claiming Martinez suffered self-induced injuries from punching a wall while in custody.

Getting to the bottom of the case has been nothing short of exacerbating for Pollak. The court held 13 conferences to attempt to resolve various discovery disputes, including two contempt and sanctions hearing. Pollak has issued 14 discovery orders to defendants. Throughout, defendants and their counsel “deliberately failed to comply with clear orders … [and] failed to conduct the required [discovery] inquiry.”

Pollak singled out defense counsel's failure to ask the “simple question” of whether any of the potential witnesses knew anything about Martinez's claims. The arresting officer himself was not asked about her injury until two years into discovery, and only after he claimed to witnessed her injuring herself, Pollak noted.

That all those involved—from paralegals at the city's corporation counsel office to the police department's civil litigation unit—were unable to locate “basic and highly relevant information” in response to discovery despite an apparent internal investigation about the incident was hard to fathom, according to Pollak.

“This suggests either a failure to conduct even the most superficial investigation by counsel or, of deeper concern, that counsel was deliberately not informed due to a cover-up perpetrated by the NYPD officers from the precinct,” Pollak wrote.

In a footnote, Pollak wrote this is not the first case where the city and department have claimed an inability to find paperwork, or the officers involved in an alleged incident.

“Given what occurred in this case during litigation, as well as what is alleged to have occurred that prompted the litigation, the city should be concerned as to whether their procedures for recording interactions with citizens and for investigating such claims in an effort to identify witnesses should be re-examined,” the magistrate judge wrote.

She went on to note that litigation of this kind against the city is of such a routine nature that none of the parties involved in the process can claim ignorance or an inability to provide the kind of information sought.

“In the context of constant litigation and a profound understanding of its discovery and preservation obligations, the failure of the city, including the various agencies and departments of which it is comprised, to maintain its documents and information in a system that is conducive to efficient searches in litigation must be viewed as a conscious choice,” Pollak wrote.

The accumulative effect of the city's failure in the matter “merits imposition of the severest form of sanctions available under Rule 37,” according to Pollak. She recommended to U.S. District Judge Ann Donnelly of the Eastern District of New York either striking defendants' answer and entering judgment in favor of the plaintiff, or granting summary judgment on her claims and having the case sent to trial on damages. She went on to recommend the city pay all reasonable expenses, including attorney fees.

In a statement, a spokesman for the city's Law Department pushed back on the view taken by Pollak, reaffirming the city's position that it's provided everything required of it in a timely fashion.

“We take our discovery obligations very seriously and our attorneys have acted in good faith throughout this litigation to promptly produce all information known to them at the time,” the spokesman said. “We will vigorously oppose this recommendation, which we believe is not supported by the record.”

Harvis & Fett name attorney Gabriel Harvis, counsel for the plaintiff, declined to comment on the court's decision.

On Thursday, Donnelly scheduled oral arguments on Pollak's report and recommendation for March 1, adding that “[b]arring exigent circumstances, no extensions or adjournments will be granted.”