United States District Court, S.D. New York
September 17, 2004.
THERESE PATRICIA OKOUMOU, Plaintiff,
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
MEMORANDUM OPINION AND ORDER
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
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
Alleged Misconduct by Defense Counsel at the Weinman
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
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
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
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.