Case 1:22-cv-03251-DG-PK Document 51 Filed 10/13/22 Page 1 of 2 PageID #: 360

THE CITY OF NEW YORK

HON. SYLVIA O. HINDS-RADIX LAW DEPARTMENT MARK D. ZUCKERMAN
Corporation Counsel 100 CHURCH STREET Senior Counsel
NEW YORK, NY 10007 E-mail: mzuckerm@law.nyc.gov
Phone: (212) 356-3519
Fax: (212) 788-9776

October 13, 2022

VIA ECF
The Honorable Peggy Kuo
United States Magistrate Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201

Re: Bell v. City of New York, et. al., 22 Civ. 3251 (DG)(PK); Bolt v. City of
New York, et. al., 22 Civ. 3318 (DG)(PK); Johnson v. City of New York, et. al.,
22 Civ. 3320 (DG)(PK)

Your Honor:

I am a Senior Counsel in the office of the Hon. Sylvia O. Hinds-Radix,

Corporation Counsel of the City of New York, representing the appearing defendants in these
matters. We write to respectfully request that these matters be consolidated for discovery
pursuant to 42(a), Fed. R. Civ. P.

“If actions before the court involve a common question of law or fact, the court
may: 1) join for hearing or trial any or all matters at issue in the actions; 2) consolidate the
actions; or 3) issue any others orders to avoid unnecessary cost or delay.” Rule 42(a), Fed. R.
Civ. P. “The trial court has broad discretion to determine whether consolidation is appropriate.”
Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990). “Consolidation is favored to
‘avoid unnecessary costs or delay,’…and ‘to expedite trial and eliminate unnecessary repetition
and confusion.’” Killoran v. W. Hampton Beach Sch. Dist., 20 Civ. 4121 (JS)(SIL), 2022 U.S.
Dist. LEXIS 83481, at *11 (E.D.N.Y. May 9, 2022) (internal citations omitted). In determining
whether consolidation is appropriate, courts weigh “considerations of convenience, judicial
economy and cost reduction while insuring that the ‘paramount concern for a fair and impartial
trial’ is honored.” Lasalle Bank Nat’l Ass’n v. Bethany Holdings Group LLC, 09 Civ. 5359
(PGG), 2009 U.S. Dist. LEXIS 92466, at *3-4 (S.D.N.Y. Oct. 5, 2009) (quoting Johnson, supra,
at 1285).
Case 1:22-cv-03251-DG-PK Document 51 Filed 10/13/22 Page 2 of 2 PageID #: 361

In appropriate circumstances, courts have routinely consolidated actions for

discovery purposes. See Lasalle Bank, supra, at *4 (“the seven actions listed below are
consolidated for discovery purposes.”); Hilti Aktiengesellschaft v. Milwaukee Elec. Tool Corp.,
04 Civ. 629 (ARR)(ASC), 2004 U.S. Dist. LEXIS 16373, at *26-27 (E.D.N.Y. July 22,
2004)(“consolidation contemplates and may be limited to consolidation for pre-trial purposes,
such as discovery.”) (quoting 8 Moore’s §42.10[2][a], 42.11[d]).

Consolidation for purposes of discovery is clearly appropriate for Bell, Bolt and
Johnson pursuant to Rule 42(a). There are clearly common issues of fact and law in these cases.
All three plaintiffs were convicted, and had their convictions vacated, arising out of the
homicides of Ira Epstein and Charles Davis in December, 1996 in which they were alleged to be
co-conspirators. Any review of plaintiffs’ complaints demonstrates that there is a substantial
overlap in the allegations made, as well as the causes of action brought. In fact, the allegations
are virtually identical in most respects. The witnesses and documents are also virtually identical
in the three cases. Further, these matters have now been marked as “related” under this Court’s
Rules, and identical discovery plans have now been ordered by this Court.

Yet, at a minimum, counsel for Bell takes the position that these actions should
not be consolidated. Their spokesman at the parties’ Rule 26(f) conference, David Berman,
asserted the wild notion that a many of the depositions contemplated in these cases should be
taken separately, with separate time limits. This of course is not in the interest of judicial
economy, and will only cause costs to escalate and discovery to be prolonged. Simply,
consolidation of discovery is not only warranted in these cases, but is clearly the most logical
way to proceed. Bell’s opposition to consolidation is baseless. Any decision on whether these
matters should be consolidated for trial can be determined at a later date when discovery is more
advanced.

Thank you for your consideration herein.

Respectfully submitted,

/s/ Mark D. Zuckerman

Mark D. Zuckerman
Senior Counsel

cc: All Counsel (via ECF)