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United States District Court, W.D. New York

March 1, 2004.

Tijuana Scarbrough, Plaintiff,
Gray Line Tours, Defendant.

The opinion of the court was delivered by: HUGH SCOTT, Magistrate Judge

Decision & Order

The defendant, Grey Line Tours ("GLT") has filed a motion to dismiss the complaint in this case due to an alleged failure of the plaintiff's counsel to comply with discovery orders. In the alternative, the defendant seeks a court order awarding compelling the plaintiff to comply with discovery requests, a modification of the scheduling order, and other sanctions. (Docket No. 29).*fn1


  The plaintiff, Tijuana M. Scarbrough ("Scarbrough"), brings this action asserting that GLT discriminated against her because of her race. She alleges that one of her co-workers rubbed his penis on her on various occasions and that she complained to GLT about this conduct. She also alleges that her co-workers used racial slurs against her. Finally, Scarbrough asserts that she was physically threatened. (Docket No. 1, ΒΆ 19). GLT cites to the plaintiff's failure to respond to a document demand and the submission of an unverified interrogatory response which prompted an initial motion to compel. That motion was eventually withdrawn after the plaintiff took steps to respond to discovery demands. The defendant also cites to the fact that the plaintiff's counsel and the plaintiff left the plaintiff's deposition before it was completed. (Docket No. 31). It appears that the plaintiff's counsel objected to the defense counsel questioning the plaintiff regarding documents without providing plaintiff's counsel a copy of the document to read along during the questioning. In this regard, the plaintiff's counsel was relying on a guideline published by Hon. Leslie Foschio with respect to depositions. That guideline, which the plaintiff's counsel asserts reflects local customary practice, requires that copies of documents presented to the witness be made available to opposing counsel so that counsel can follow along with the questioning.

  The Court notes that plaintiff's counsel has failed to appear for at least one Court appearance in this case. In addition, the plaintiff has advised the Court that she has had difficulty communicating with her counsel on occasions. On October 24, 2003, the plaintiff and plaintiff's counsel, as well as defense counsel, appeared before the Court, at which time these issues were discussed. It appeared at that time that plaintiff and plaintiff's counsel had communicated. In a separate Report & Recommendation, the Court has recommended that the motion for sanctions be denied.

  With respect to the plaintiff's deposition, the Court directs that the plaintiff submit to a new deposition and that at the deposition defense counsel shall provide the plaintiff's counsel with copies of any documents presented to the plaintiff for questioning so that plaintiff's counsel can follow along. While not a per se rule, such a practice appears to be reasonable. The Court also directs that the following Amended Scheduling Order apply in this case:

  1. All discovery in this case shall be completed by May 7, 2004;

  2. A motion for summary judgment may be filed on or before June 4, 2004;

  3. If no motion for summary judgment is filed, pretrial statements shall be filed on or before July 2, 2004;

  4. A final pretrial conference shall take place before Hon. William M. Skretny on July 29, 2004 at 9:00 am;

  5. The trial in this matter shall commence on September 21, 2004 at 9:30 am.

  So ordered.

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