The opinion of the court was delivered by: Mordue, District Judge.
MEMORANDUM-DECISION AND ORDER
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.
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
Mr. Palmateer: Like I said, these are employees.
These are non-parties. I can't direct them to do
Mr. Burke: Are you — you're not going to answer my
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
Mr. Burke: We're going to call for a Magistrate. I
don't know if ...