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United States District Court, S.D. New York

September 17, 2004.

SAFE HORIZON and CAROL WEINMAN, as Director of the Staten Island Community Office, Defendants.

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge


I write to resolve a number of discovery disputes that have been raised by the parties:

Motion for Sanctions (Docket Item 16)
Among the witnesses deposed by plaintiff was Emmanuel Tetteh, one of plaintiff's college professors. Tetteh is not affiliated with the defendants in this action, and his only connection with the defendants appears to be a single telephone call he made to Carole Weinman, plaintiff's supervisor, in which he unsuccessfully sought to have Weinman participate as a supervisor in an internship program required by plaintiff's college.

  Plaintiff seeks sanctions against Tetteh's counsel for her conduct at Tetteh's deposition. I have reviewed the transcript of Tetteh's deposition, and although counsel's conduct was not exemplary, it was not so egregious as to justify the imposition of sanctions. Although the Federal Rules of Civil Procedure have long provided that all objections to questions asked at a deposition are preserved except objections that "might have been obviated or removed if presented at the time," Fed.R.Civ.P. 32(d)(3)(A), counsel persisted in making a number of non-form objections. Although this conduct was undesirable, it did not prevent plaintiff from making a complete inquiry concerning Tetteh's telephone conversation to Weinman.

  Counsel's conduct, although flawed, did not frustrate the purpose of the deposition. Accordingly, plaintiff's motion for sanctions (Docket Item 16) is denied.

  Subpoena To Metropolitan College of New York

  By letter motion, plaintiff seeks to compel non-party Metropolitan College of New York ("MCNY") to produce four categories of documents subpoenaed by plaintiff: (1) e-mails relating to this litigation; (2) communications between MCNY's counsel and Tetteh that were exchanged or received in connection with plaintiff or this litigation; (3) complaints of discrimination made against MCNY, and (4) documents that plaintiff has filed with MCNY's Career Services Department. In response, MCNY has produced the documents marked by plaintiff at Tetteh's deposition and correspondence to and from plaintiff.

  Plaintiff's motion to compel the further production of documents from MCNY is denied. Plaintiff alleges that she was the victim of discrimination by her former employer, Safe Horizon, and her former supervisor, Carol Weinman. There is no evidence of any connection between MCNY and Safe Horizon or Weinman nor is there any evidence or reason to believe that MCNY, its employees or agents have any knowledge of the events that give rise to this litigation. To the extent that Tetteh, a faculty member at MCNY, may have knowledge relevant to plaintiff's qualifications, plaintiff has already had the opportunity to explore that issue at Tetteh's deposition. The documents sought by plaintiff from MCNY are clearly either privileged or irrelevant.

  To the extent that plaintiff's dispute with MCNY arises out of Tetteh's refusal to sign an affidavit in support of plaintiff's case, plaintiff is reminded that the Federal Rules of Civil Procedure do not permit a party to compel a non-party witness to sign an affidavit. Whether a witness signs an affidavit is entirely within the witness's discretion; a witness need not even provide a reason for refusing to sign an affidavit. Thus, Tetteh was entirely within his rights in refusing to sign the draft affidavit proffered by plaintiff even if the affidavit was entirely accurate.

  Although there is no ethical bar to a pro se litigant contacting a potential witness directly, I find that it is appropriate in this case to order that plaintiff direct all further communications with Tetteh concerning this litigation through his attorney, Kirsa Phillips, Esq. It appears that plaintiff has previously served a subpoena at Tetteh's residence after 11:00 p.m., conduct which, at best, demonstrates poor judgment. In light of this fact, and Tetteh's expressed preference that all further contact be through counsel, I order that plaintiff make no further direct contact with Tetteh concerning her lawsuit and that any further communication be through his attorney.

  Finally, in light of plaintiff's pro se status, I deny MCNY's application for attorney's fees in connection with the present motion.*fn1

  Alleged Misconduct by Defense Counsel at the Weinman Deposition

  Plaintiff also complains of misconduct by defense counsel at the Weinman deposition. Specifically, plaintiff complains of consultations between Weinman and her counsel that occurred during the deposition and alleged coaching by counsel.

  Ordinarily, consultation between counsel and a witness at a deposition raises questions only when the consultation is initiated by counsel. See Local Civil Rules for the Eastern District of New York 30.6. A witness is generally free to consult with counsel at any time during a deposition. Plaintiff has not provided a transcript of the deposition and does not specify whether the consultations were initiated by the witness or by counsel. Accordingly, plaintiff has not established that there was anything inappropriate about the conversation between Weinman and her counsel.

  As to plaintiff's claim of coaching, plaintiff offers no specific facts and argues only that counsel used unspecified body language to communicate answers to Weinman. There can be no doubt that it is inappropriate for counsel to feed answers to a deposition witness either directly or through non-verbal means. However, in order to establish her claim of misconduct, plaintiff must offer more than her vague, conclusory speculation that counsel was using body language to communicate answers to Weinman. In the absence of proof of specific facts giving rise to an inference of coaching, plaintiff has failed to establish this claim.

  Motion to Compel Defendants to Produce Additional Documents

  Plaintiff next moves to compel defendants to produce the following five categories of documents. Read reasonably, plaintiff appears to be seeking the following documents:

1. Plaintiff's employment records, including: (a) all correspondence and/or communications "with any other persons not limited to clients;" (b) all e-mails and/or memos produced by Mrs. Weinman "in the name of staff, whether or not such documents included Ms. Okoumou;" (c) all statistical data plaintiff produced during her tenure with Safe Horizon.
2. Documents concerning the penalties imposed on Holly Rossig, Christine Russo and Carole Weinman for acts of misconduct similar to the alleged misconduct that resulted in the termination of plaintiff's employment. 3. Warning(s) given to Holly Rossig, Christine Russo and Carole Weinman.
4. Documents concerning why plaintiff was not considered for promotion to the position of Case Manager. The information sought includes the reason(s) for the termination of plaintiff's employment and the name(s) of the person(s) who took over plaintiff's responsibilities.
5. The job description and qualifications for the position of case manager as of the date plaintiff applied for the position.
(Plaintiff's document entitled "Discovery Issues III," dated August 16, 2004, at 3-4).

  There are several deficiencies in plaintiff's application. First, the categories of documents listed above are not congruent with the documents requested in plaintiff's July 8, 2004 request for documents. Obviously, no party can properly compel the production of documents that have never been requested.

  Second, defendant has represented that it has already produced plaintiff's employment records and the job description for the case manager position. Rather than have a hearing on the issue, I conclude that the most efficient course for all concerned is to direct defendants to produce a second copy of these documents to plaintiff.

  Third, a number of plaintiff's document requests are clearly over broad, such as her requests for all communications and e-mails authored by Carole Weinman and all statistical data produced by plaintiff during her employment. To the extent that they have not already done so, defendants are directed to produce all non-privileged correspondence, including e-mails, by Ms. Weinman concerning plaintiff, and any of plaintiff's written work product upon which defendants will rely in support of any argument that plaintiff was terminated for cause.

  With respect to plaintiff's request for documents concerning the disciplinary treatment meted out to other employees for conduct similar to plaintiff's, defendants have stated that no other employees engaged in conduct similar to the conduct that lead to plaintiff's termination and that there are, therefore, no documents to produce. Plaintiff offers no evidence to rebut this assertion. Nevertheless, because plaintiff is clearly seeking support for an argument that she was disciplined more harshly than other individuals who are not in her protected class, I shall order defendant to produce any disciplinary records that exist for Holly Rossig, Christine Russo and Carole Weinman. In making this Order, I express no opinion on whether any of these individuals were similarly situated to plaintiff; it would be premature to attempt to resolve that issue at the discovery stage.

  Finally, to the extent plaintiff is seeking unspecified documents concerning David Mensah and Glenn Jennings, her application is denied. Plaintiff does not specify what documents she is seeking concerning these individuals, and, thus, her request is too vague. Motion to Extend Discovery

  Finally, plaintiff seeks a second extension of discovery (Docket Item 28).

  This is a fairly straight-forward employment discrimination case in which plaintiff has had 13 months to complete discovery. I realize that plaintiff is proceeding pro se. Nevertheless, plaintiff has had ample time to complete discovery, has taken a number of depositions and has engaged in substantial document discovery. Accordingly, plaintiff's application to further extend discovery (Docket Item 28) is denied.


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