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PRECISIONFLOW TECHNOLOGIES v. CVD EQUIPMENT

April 9, 2001

PRECISIONFLOW TECHNOLOGIES, INC., PLAINTIFF-COUNTER-DEFENDANT,
V.
CVD EQUIPMENT CORPORATION, DEFENDANT-COUNTER-CLAIMANT; AND STAINLESS DESIGN CONCEPTS, LTD., DEFENDANTS. CVD EQUIPMENT CORPORATION, PLAINTIFF, V. KEVIN BRADY AND JOHN DOES I-XV, DEFENDANTS.



The opinion of the court was delivered by: Mordue, District Judge.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

The present objections by plaintiff, PrecisionFlow Technologies, Inc., ("PrecisionFlow") to a Memorandum-Decision and Order by Magistrate Judge David R. Homer dated December 27, 2000, imposing sanctions on PrecisionFlow and its counsel for failure to produce PrecisionFlow employees for deposition, arise out of a series of contentious discovery disputes between PrecisionFlow and defendant CVD Equipment Corporation ("CVD"). For the reasons stated below, the Court denies PrecisionFlow's objections, and affirms Magistrate Judge Homer's Memorandum-Decision and Order in its entirety.

II. BACKGROUND*fn1

In June and July 2000, counsel for CVD served notices upon counsel for PrecisionFlow for the depositions of nine PrecisionFlow employees. In a series of letters and telephone calls between counsel over the next few months, these depositions were confirmed and rescheduled several times. Ultimately, the depositions were commenced on October 18, 2000, just before 10:00 a.m. at a motel fifteen minutes from PrecisionFlow's facilities, and were scheduled to continue for several days until concluded.

Present at the deposition were: counsel for CVD and PrecisionFlow, two CVD employees there to provide technical guidance to CVD counsel, and the president of PrecisionFlow. Of the nine noticed PrecisionFlow employees, however, only one appeared. When counsel for CVD inquired about the eight remaining employees, Lee Palmateer, counsel for PrecisionFlow, advised counsel for CVD, for the first time, that PrecisionFlow has "no control" over the appearances of the CVD employees and that "the proper way to get these employees would have been to subpoena them." It is undisputed that the PrecisionFlow employees were fifteen minutes away at PrecisionFlow facilities, and indeed at least two were waiting for a call from Mr. Palmateer advising them to appear for the deposition.

The deposition transcripts, annexed to the decision hereto, reveal a contentious interchange between the attorneys regarding the production of the witnesses. The CVD attorney, Daniel Burke, asked at least six times, whether Mr. Palmateer, as the attorney for PrecisionFlow, was going to produce the noticed witnesses. Although Mr. Palmateer stated that he believed one additional witness was going to appear, he told CVD that he had no control over whether the remaining seven witnesses were going to appear:

Mr. Burke: Okay. We have nine deposition notices. Are you as PFT's counsel going to produce these witnesses?
Mr. Palmateer: Like I said, these are employees. These are non-parties. I can't direct them to do anything.
Mr. Burke: Are you — you're not going to answer my question?
Mr. Palmateer: That's my answer to your question. Do you have another question?
Mr. Burke: Do you know whether they're going to appear for their depositions?
Mr. Palmateer: How can I know? These are individuals.
Mr. Burke: We're going to call for a Magistrate. I don't know if ...

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