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Bey v. City of New York

June 18, 2007


The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge



Plaintiffs, Oba Hassan Wat Bey, Edward Ebanks, Herbert L. Hinnant, Michael Nichols, Pedro Rivera, Sr. Bey, and Hassan Abdullah (collectively, "plaintiffs"), brought suit against defendants, the City of New York, Rudolph Giuliani and Bernard B. Kerik (collectively, "defendants"), alleging various violations of their constitutional rights.*fn1 On February 23, 2007, United States District Judge Lawrence M. McKenna referred the case to the undersigned for general pretrial supervision. Pending before this Court is plaintiffs' motions for sanctions for defendants' failure to produce properly noticed deponents David Klopman, Bernard Kerik, William Fraser, and Edward Kuriansky. For the following reasons, plaintiffs' motions are GRANTED, in part, and DENIED, in part.


On February 22, 2007, plaintiffs noticed the depositions of Kerik, Fraser, and Kuriansky.

Plaintiffs' Memorandum of Law in Support of Plaintiffs' Motion for Sanctions ("Pl. Sanc. Mem. I"), at 2; Plaintiffs' Memorandum of Law in Support of Plaintiffs' Motion for Sanctions for the Defendants' Failure to Produce ("Pl. Sanc. Mem. II"), at 2. Kerik and Fraser were scheduled to be deposed on May 11, and Kuriansky on May 25.*fn2 Pl. Sanc. Mem. I at 2; Pl. Sanc. Mem. II at 2. On March 29, plaintiffs noticed the deposition of Klopman, which was scheduled for April 12.

Pl. Sanc. Mem. I at 2. As early as March 29, via an exchange of letters, defendants alerted plaintiffs that they did not intend to produce Klopman for deposition, but did not move for a protective order on his behalf. Id. at 2-3. On April 12, plaintiffs' appeared for the deposition, but Klopman was not produced. Id. On April 17, a telephone conference was held with the parties to resolve ongoing discovery disputes. Defendants were informed that their position on discovery was erroneous, and that discovery was to proceed. If defendants objected to a specific proposed deposition, the Court instructed them to confer with plaintiffs and, if unsuccessful, move for a protective order in accordance with the Federal Rules of Civil Procedure. Defendants' Memorandum of Law in Opposition of Plaintiffs' Motion for Sanctions ("Def. Opp'n"), at 6.

On May 11, defendants filed a motion for a protective order to preclude the depositions of Kerik and Fraser.*fn3 Neither Kerik nor Fraser appeared for the deposition. Pl. Sanc. Mot. I at 2. On May 24, the day prior to Kuriansky's noticed deposition, defendants informed plaintiffs that Kuriansky was hospitalized and would not be produced. Pl. Sanc. Mot. II at 2. On May 25, Kuriansky did not appear for the deposition. Instead, defendants requested a pre-motion conference with the Court in order to file for a protective order to preclude the deposition of Kuriansky.


A. Standard of Review

Under Rule 37(d), "[i]f a party . . . fails . . . to appear before the officer who is to take the deposition, after being served with a proper notice, . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just . . ." FED. R. CIV. P. 37(d). In lieu of, or addition to, such orders, "the court shall require the party failing to act or the attorney advising that part or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." Id. The Rule specifically notes that "[t]he failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c)." Id.

B. Depositions of Bernard Kerik and William Fraser

In their opposition, defendants argue that sanctions are not warranted on three grounds: 1) willfulness, bad faith, or fault have not been shown; 2) the discovery was objectionable; and 3) protective orders were sought. Citing to the decision in In re Rezulin Products Liability Litigation, defendants assert that sanctions should only be imposed upon a finding of "willfulness, bad faith, or . . . fault." 223 F.R.D. 109, 116 (S.D.N.Y. 2004) (internal citations omitted). However, defendants inaccurately cite this standard, which only applies to "case-dispositive sanctions." Id. Rather, the text of Rule 37(d) clearly states that a court shall require the payment of reasonable expenses, including attorney's fees and costs, unless the failure to appear was substantially justified or, for other reasons, the sanction would be unjust. FED. R. CIV. P. 37(d). There is no indication in the record that Kerik or Fraser's failure to appear at the properly noticed deposition was substantially justified, or that other circumstances would make an award of expenses unjust. Defendants' second argument, that the depositions were objectionable because Fraser and Kerik were high-ranking officials, is explicitly preempted by the text of Rule 37(d). Finally, while defendants' assert that they "sought protective orders consistent with the Court's instructions," Def. Mem. at 9, this is not an accurate representation. First, the depositions were noticed on February 22, but the protective order was not sought by defendants until the day of the scheduled deposition, May 11. Second, defendants, in filing the motion, violated Local Rule 37.2, which requires parties to request a pre-motion conference prior to filing for a protective order. By failing to adhere to this rule, defendants denied plaintiffs' proper notice of their objection to the depositions, and denied the Court the opportunity to intervene prior to the unnecessary expending of plaintiffs' time and resources. Defendants' actions are particularly questionable in light of the April 17 conference, where defendants acknowledge the Court made clear its expectations as to the proper method of objecting to depositions. Def. Mem. at 6.

Defendants argue that "[i]t is logically incongruent to propose that plaintiffs can obtain sanctions because witnesses who are not properly subject to depositions were not produced for depositions." Id. at 9. This statement highlights the essential underlying basis for sanctions under Rule 37(d) in general, as well as in this instance in particular. It is not up to the parties to decide who is and is not a proper deponent. Rather, this is the jurisdiction of the Court, and the Rules provide for the timely resolution of such disputes before one party is made to bear the unnecessary expense of thwarted discovery. Defendants refused to appear for the depositions prior to giving the Court an opportunity to determine that their position was legally sound, and, therefore, their actions were in ...

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