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Sicurelli v. Jeneric/Pentron

March 10, 2006

DR. ROBERT SICURELLI AND DR. SAMUEL MASYR, PLAINTIFFS,
v.
JENERIC/PENTRON, INC., PENTRON CLINICAL TECH., LLC, PENTRON CORP., INC., AND COLTENE/WHALEDENT, INC., DEFENDANTS.



The opinion of the court was delivered by: Townes, U.S.D.J.

MEMORANDUM & ORDER

The facts and procedural history underlying the instant dispute are set forth in greater detail in Magistrate Judge Matsumoto's order dated December 30, 2005 (the "Ruling"), imposing sanctions on Plaintiffs' counsel Bradford J. Badke, Esq. ("Badke") and granting Defendants' motion to compel Plaintiffs to respond to certain questions, familiarity with which is assumed, and those facts are incorporated by reference herein. (See Ruling.)

Upon consideration of Judge Matsumoto's order to which Plaintiffs object, the releveant deposition transcripts and the written and oral submissions of the parties, and for the reasons that follow, Plaintiffs' objections are denied and Ruling is affirmed in its entirety.

DISCUSSION

"A magistrate...may issue orders regarding nondispositive pretrial matters." Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). "Matters concerning discovery generally are considered 'nondispositive' of the litigation." Id. "The district court reviews such orders under the 'clearly erroneous or contrary to law' standard." Id. (quoting 28 U.S.C. § 636(b)(1)(A)).

"An order is 'clearly erroneous' only if a reviewing court, considering the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed; an order is 'contrary to law' when it fails to apply or misapplies relevant statutes, case law or rules of procedure." Knitting Fever, Inc. v. Coats Holding Ltd., 2005 WL 3050299, at *3 (E.D.N.Y. Nov. 14, 2005) (internal citations omitted). "This standard is highly deferential...and only permits reversal where the magistrate abused his discretion." Id.; see also Schwartz v. Metropolitan Property and Casualty Ins. Co., 393 F. Supp. 2d 179, 180 (E.D.N.Y. 2005).

Plaintiffs' objections to the sanctions imposed by Judge Matsumoto include (a) that the depositions were not "fair"under Rule 30(d)(3), and thus, sanctions were unavailable; (b) that counsel's objections and instructions not to answer were proper under Rule 30(d)(1), and thus unsanctionable; and that (c) Judge Matsumoto misapplied the law in imposing sanctions.

A. Fairness Of Examination

Plaintiffs argue that Judge Matsumoto's imposition of sanctions was clearly erroneous and contrary to law, in part, because William Cass, defense counsel ("Cass" or "Defense Counsel") did not conduct a "fair examination" of the witness under Rule 30(d)(3) of the Federal Rules of Civil Procedure ("Federal Rules") which reads as follows:

If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees incurred by any parties as a result thereof.

Fed. R. Civ. P. 30(d)(3). Plaintiffs claim that Defense Counsel's examination was not fair because "he attempted to elicit information outside the scope of discovery as set by (i) the agreement between counsel limiting the scope of plaintiffs' continued depositions; (ii) the May 3, 2005 Order limiting discovery on plaintiffs' responses to contention interrogatories; and (iii) the August 30, 2005 Order limiting the scope of the depositions to new discovery." (Plaintiffs' Objections to the Magistrate Judge's Ruling of December 30, 2005 ("Objections") at 7.) The Court will address in turn the effect, if any, of the alleged agreement and Judge Matsumoto's Orders on the fairness of Defense Counsel's examination.

1. Agreement Between Counsel

Plaintiffs argue that the parties entered into an agreement governing the scope of the August 30 and August 31, 2005 depositions. (Objections at 8.) Plaintiffs refer to this agreement frequently and believe its "intentional breach" by Defendants "evinces bad faith" in that Defense Counsel asked "unfair" questions "prohibited" by the agreement. (Id.) The documents comprising the alleged agreement are the following:

a. A December 29, 2004 letter from Badke to Defense Counsel stating, inter alia, "Plaintiffs do not object in theory to continued depositions provided the depositions are limited in time and to subject matter that could not have been addressed at the original depositions, regardless of whether plaintiffs were actually asked questions on a particular topic." (Objections, Ex A at Internal Exhibit 3.)

b. A February 22, 2005 letter from Plaintiffs' counsel Gloria Fuentes containing the same language. (Id. at Internal Ex, 4.)

c. Defendants' response thereto: "With regard to your letter of February 22, 2005, although we are not obligated to limit the scope of our deposition beyond the limits imposed by the Federal Rules of Civil Procedure, it is our intention to ask the plaintiffs about discovery produced since ...


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