The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiffs' motion for court supervision of deposition of Kristin Machelor (Docket No. 140*fn1 ) as well as some defendants' alternative application for similar relief (Docket No. 149, County Defs. Atty. Affirm. ¶ 15). The County Defendants*fn2 alternatively sought denial of this deposition (id. Wherefore cl. (A)) or precluding lines of questioning plaintiffs could ask Machelor (id. Wherefore cl. (B)), but have not formally moved for a protective order or to quash the underlying subpoena. This is all far afield from the major procedural issue pending in this case (that is, plaintiffs' class certification motion (Docket No. 131)) as well as the underlying merits in this case.
Responses to this motion were due on or before September 18, 2006, and any reply was due by September 25, 2006. Oral argument was held on October 11, 2006, following the previously scheduled settlement conference. (Docket No. 142.) This motion was deemed submitted following that argument (Docket No. 151).
As the parties are well aware, this case is a putative class action (see Docket No. 131) asserted by three individuals who were detained by the Erie County Sheriff in either the Erie County Holding Center or the Erie County Correctional Facility. Plaintiffs allege that they were strip searched without individualized suspicion while in the County Defendants' custody.
Pertinent to this motion, plaintiffs obtained in discovery several e-mails sent by former Assistant County Attorney Kristin Machelor to individual defendants and other Sheriff's Department officials regarding the Sheriff's Department's evolving policies regarding inmate strip searches. The parties engaged in a great deal of motion practice surrounding production of these e-mail transmissions (Docket Nos. 25, 80, 107 (motions); 52, 78, 106, 113 (orders), including a pending writ of mandamus before the United States Court of Appeals for the Second Circuit, see In re Erie County (Pritchard v. Erie County), No. 06-2459 (2d Cir. 2006); see Docket No. 149, County Defs. Atty. Affirm. Ex. A (2d Cir. notice of writ of mandamus scheduled for consideration during motion day of September 12, 2006)). To date, the Second Circuit has not ruled on this writ of mandamus.
Plaintiffs next subpoenaed Machelor (Docket No. 140, Pls. Atty. Affirm. ¶ 4, Ex. C) to produce documents and appear at a deposition. According to plaintiffs' counsel, Machelor's attorney indicated that she would refuse to answer questions about these e-mails, claiming that they were privileged attorney-client communications and that this Court had not resolved the issue of the privileged nature of the communications (id. ¶ 4). At oral argument, Machelor's counsel indicated that he would instruct his client only to answer questions confirming whether she wrote the e-mails in questions and not other questions regarding her thought processes.
Plaintiffs now seek either leave to conduct Machelor's examination in Court before the undersigned or to have the Court available by telephone to resolve disputes that may arise from this deposition. They also move for the Court to set a date (or series of possible dates) for this deposition. (Id. ¶ 5). Plaintiffs do not claim that the Court would have to attend the entirety of the deposition (id.) but only those parts in which Machelor (or defendants) raise an objection requiring a ruling (id.). But the nature of plaintiffs' potential questioning (for example, detailing how Machelor came to writing the e-mails in question, her other communication to defendants) may require such supervision over the entire deposition.
Machelor objects to the examination as an invasion of privileged attorney-client communication with her former client (see generally Docket No. 147), as the defendants all join in that objection (see generally Docket Nos. 148, 149). Machelor and defendants all contend that her deposition would breach attorney work product privilege (Docket No. 147, Machelor Atty. Affirm. ¶ 14; Docket No. 149, County Defs. Atty. Affirm. ¶ 4; Docket No. 149, County Defs. Memo. of Law at 2, 5-7; Docket No. 148, Gipson Atty. Affirm. ¶ 6). Machelor argues that deposing "counsel for an opposing party during discovery is disfavored" (Docket No. 147, Machelor Atty. Affirm. ¶ 15; see also Docket No. 148, Gipson Atty. Affirm. ¶ 6). But all acknowledge that she is a former Assistant County Attorney (see, e.g., Docket No. 147, Machelor Atty. Affirm. ¶ 3) and clearly not counsel for defendants in this action. Machelor argues that plaintiffs are attempting to create an "impossible conflict" between her and her former client (Docket No. 147, Machelor Atty. Affirm. ¶ 22). While she owes ethical obligations to her former client, see 22 N.Y.C.R.R. §§ 1200.27 (DR 5-108, conflict of interest regarding former client), 1200.21 (DR 5-102, lawyer as witness), 1200.45(b) (DR 9-101(b), obligation of former government attorney to former government client), those are not the same as an attorney whom her opponent is trying to turn into a witness in the case.
The County Defendants also seek an Order precluding plaintiffs "from questioning Ms. Machelor with respect to her mental impressions, conclusions, opinions, legal theories, or advice to the County Defendants as such a deposition is unnecessary," (Docket No. 149, County Defs. Atty. Affirm. ¶ 14), or for Court supervision of this deposition to preclude such questioning by plaintiffs (id. ¶ 15). Note, no one has moved to quash the subpoena, nor has served a timely objection to the subpoena, cf. Fed. R. Civ. P. 45(c)(2(B), nor has anyone moved for a protective order, cf. id. R. 26(c).
Again, discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d 1994). While not citing to the Federal Rules of Civil Procedure in support of their motion, plaintiffs essentially move to compel Machelor's testimony in front of the Court or with judicial supervision of the deposition, cf. Fed. R. Civ. P. 37(a)(2)(B), (3), 30(c), anticipating problems from this witness before she testifies. In their alternative argument that plaintiffs' deposition of Machelor should be controlled by Court supervision (see Docket No. 149, County Defs. Memo. at 8), the County Defendants also do not cite authority for such supervision. Courts do have the discretion to order depositions to occur in the courthouse under judicial supervision, see 8A Federal Practice and Procedure, supra, § 2112, at 89-90.
Plaintiffs (and, for different purposes, the County Defendants) seek Court supervision of this deposition, either to be held in the courtroom or with the Court available to be contacted as issues arose. The County Defendants, while arguing against judicial supervision as sought by plaintiffs, alternatively urge for Court supervision of this deposition to preserve their attorney-client ...