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WINE MKTS. INT'L v. BASS

October 15, 1997

WINE MARKETS INTERNATIONAL, INC., Plaintiff,
v.
NOAH BASS, et al., Defendants.



The opinion of the court was delivered by: BOYLE

 Pending before the court is a motion for sanctions against plaintiff's counsel, Joseph B. Pritti, Esq., ("Mr. Pritti") pursuant to 28 U.S.C. § 1927 and Rule 37 of the Federal Rules of Civil Procedure. The motion arises out of alleged dilatory tactics by Mr. Pritti regarding the scheduling and production for deposition of eight plaintiff witnesses. Defendants' attorneys, Thadd A. Blizzard, Esq. ("Mr. Blizzard"), and Joan A. Jernegan, Esq. ("Ms. Jernegan"), assert that their clients were forced to incur excessive expenses and attorney fees when Mr. Pritti failed to take steps to comply with this court's Order, dated March 26, 1997, which required the production of eight noticed persons by plaintiff for depositions to be taken by defendants between May 1 and May 16, 1997. Defendants contend that Mr. Pritti acted in bad faith, using dilatory conduct to disrupt the taking of the aforementioned depositions primarily with respect to six Wine Markets International ("WMI") employees.

 Defendants maintain that Mr. Pritti's conduct is sanctionable pursuant to 28 U.S.C. § 1927 and Rule 37 of the Federal Rules of Civil Procedure. They seek sanctions in the sum of $ 10,412.50 for attorney fees, unnecessary travel expenses and subpoenae costs incurred in obtaining the depositions. Affidavit of Thadd Blizzard, Esq., dated June 24, 1997, at P 4.

 BACKGROUND

 In October 1996, defendants' counsel requested the names and addresses of WMI employees, and the two WMI owners. Mr. Pritti responded by letter dated October 8, wherein he stated:

 
With respect to those witnesses who are employed by plaintiff, I will not provide you with their addresses and phone numbers. Pursuant to the New York Canons of Professional Responsibility opposition counsel is not to contact the employees of a party. When and if you desire to take any depositions, at a mutually agreed upon time, I will make them available to you.

 Letter from Joseph Pritti, Esq. to Joan Jernegan, Esq., dated October 8, 1996, attached at Exhibit 1 to Affidavit of Thadd Blizzard, Esq., dated April 29, 1997.

 Defendants' counsel considered Mr. Pritti's correspondence an assurance that counsel would voluntarily produce the WMI employee witnesses and did not pursue their discovery request any further. See Letters from Joan Jernegan, Esq. to Joseph Pritti, Esq., dated April 9 and 15, 1997, attached as Exhibits 7 and 10 to Affidavit of Thadd Blizzard, Esq., dated April 29, 1997. Defendants' counsel made no additional efforts to locate or speak with the employees. According to Ms. Jernegan, Mr. Pritti repeated in January 1997 that "all of the WMI employees would be produced by him without the need for subpoena." See Letter from Joan Jernegan, Esq. to Joseph Pritti, Esq., April 15, 1997, attached as Exhibit 10 to Affidavit of Thadd Blizzard, Esq., dated April 29, 1997.

 In the October 8, 1996 letter, as well as in correspondence dated October 5, 1996, Mr. Pritti distinguished between "non-party witnesses" and the WMI employees sought for deposition. See id.; Letter from Joseph Pritti, Esq. to Phillip Landrigan, Joan Jernegan, and Edward Griffith, Esqs., dated October 5, 1996, attached as Exhibit 1 to Affidavit of Joan Jernegan, Esq., dated May 2, 1997. Both letters addressed the identification of non-party witnesses as distinct from the identification of WMI employees, who were considered party witnesses.

 From February 1997 to March 1997, defendants' counsel attempted to schedule dates and times for the depositions of the WMI witnesses. During these months, Mr. Blizzard sent notices to Mr. Pritti to schedule the depositions, and "each time, Mr. Pritti took the position that he would 'agree to attempt to schedule' all of the WMI employees' depositions, but each time the attempt was a failure." See Affidavit of Thadd Blizzard, Esq., at P 5, dated April 29, 1997.

 Defendants' counsel thereafter sought the court's intervention in scheduling the depositions, resulting in a lengthy conference before the court on March 26, 1997. By Order dated March 26, 1997, the court set a schedule requiring that all eight noticed persons be deposed by Defendants between May 1 and May 16, 1997. See Order of the Hon. E. Thomas Boyle, dated March 26, 1997. Ms. Jernegan prepared and filed deposition notices, pursuant to Rules 26, 28, and 30 of the Federal Rules of Civil Procedure, setting the time and location of the depositions at the offices of Phillip C. Landrigan, Esq., counsel to other party defendants herein, with an office at White Plains, New York. See Notice of Taking Depositions, dated March 31, 1997, attached as Exhibit 4 to Affidavit of Thadd Blizzard, Esq., dated April 27, 1997.

 On April 6, 1997, Mr. Pritti stated that he would not accept the time and location designated by the defendants:

 
This is to advise you that the depositions of [three] defendants will that [sic] place at my offices where I have the documents necessary to conduct the examination.
 
Additionally [three other deponents are] over . . . [sixty-five (65)] years old. Because my office is much more convenient to these witnesses, these ...

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