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OKOUMOU v. SAFE HORIZON

September 17, 2004.

THERESE PATRICIA OKOUMOU, Plaintiff,
v.
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 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. ...


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