The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge
Pending before the court is a request dated February 15, 2007 from defendant City of New York for an order precluding plaintiff from offering the testimony of witness Anthony Kirby, pursuant to 28 U.S.C. § 1927 and Rules 26, 30 and 37 of the Federal Rules of Civil Procedure. (See docket no. 50, City's Motion to Preclude, dated February 15, 2007 ("City's Motion"), at 1.) On February 16, 2007, Plaintiff filed a Response in Opposition. (See doc. no. 52, Plaintiff's Letter in Opposition ("Pl's Opp.")). Pursuant to this court's order of April 13, 2007, plaintiff submitted Affirmations of Derek S. Sells, Esq. and Gerard A. Lucciola, Esq., and an Affirmation of plaintiff Carolyn Lopez, on April 30, 2007, in further support of its opposition to the City's motion. (See doc. no. 58, Affidavits of Sells and Lucciola and Affirmation of Lopez, dated 4/30/07.) The City responded on May 17, 2007. (See doc. no. 60, Letter filed by defendant, dated 5/17/07.) For the reasons set forth herein, the court hereby denies the City's motion to preclude Mr. Kirby's testimony, orders Mr. Kirby to appear for a third deposition, and strikes those portions of his March 20, 2006 deposition testimony which violated his Sixth Amendment right to counsel.
Plaintiff in this action, Carolyn Lopez, individually and as administrator of the estate of her son, Carlos Lopez, seeks damages pursuant to 42 U.S.C. § 1983 and the common law claims of negligence and respondeat superior for the alleged wrongful death of her son. (See doc. no. 1, Verified Complaint, dated August 1, 2005, at Counts I-VII.) Plaintiff alleges that on the afternoon of May 1, 2003, New York City police officers, after hearing gunshots, misidentified Carlos Lopez as the shooter of victim James Hodges, shot Lopez without probable cause, and thereafter refused to provide Lopez with emergency medical treatment before he died of his wounds. (Id. at ¶¶ 1-2.)
Plaintiff sought and obtained this court's order for the deposition of Anthony Kirby and, on March 20, 2006, the parties traveled to Sing Sing Correctional Facility, where Mr. Kirby had been transferred from Mt. McGregor Correctional Facility. (See doc. no. 50 at 2; doc. no. 41 at 7.) Because the Kirby deposition occurred early in discovery, the parties agreed that "[s]hould new information arise relating to this Witness, . . . either one of [the parties] could order his deposition again in order to ask him additional questions." (Doc. no. 50, Exh. B, 3/20/06 Deposition Transcript of Anthony Kirby ("3/20/06 Kirby Dep. Tr."), at 5.) Mr. Kirby was "first duly sworn by notary public of the State of New York. . . ." (Id. at 4.) Plaintiff's counsel, Derek Sells, Esq., introduced himself, explained that he represented Carolyn Lopez in a suit on behalf of her son, and asked that Mr. Kirby "answer the questions fully." (Id. at 4-5.) Mr. Kirby agreed. (See id. at 5.) Mr. Kirby then testified that "Twin" (also known as Jemel or Jamar Veazy, see id. at 8:18-22) recruited him to help kill James Hodge (id. at 9-10, 16-18), and that on May 1, 2003, Mr. Kirby stood lookout as Twin entered 685 Gates Avenue to kill Mr. Hodge. (Id. at 19, 23, 57.) Under questioning by the City, Mr. Kirby testified as follows:
Q: [by counsel for the City, Alan Scheiner, Esq.] And [Twin] said to you -- I think your words were, he said "I'm about to end the dude's life?"
Q: [by Mr. Scheiner] You knew that [Twin] was going in there to kill this other man, right?
A: From that point on, yeah. Right when, when I got to the corner [to stand lookout], I knew what he was about to do. I didn't run and none of that. I didn't know what the hell he was going to do to me. I stood that [sic] I actually watched him go inside the building. I was standing right there on the corner. (Id. at 50, 57-58.)
Mr. Kirby further testified that he observed Carlos Lopez standing across the street from him, on the east side of Marcus Garvey Boulevard, approximately half a block south, in front of a street vendor. (Id. at 85.) After Mr. Kirby heard gunshots from the lobby of 685 Gates Avenue, he stated that he ran around the block, came back and observed Lopez "laid out on the floor." (Id. at 21, 24.) Mr. Kirby then witnessed a police officer drag Lopez west across Marcus Garvey Boulevard to a bus stop. (See id. at 77-80, 83, 85.) Mr. Kirby further testified that Twin and Lopez were wearing "the same outfit . . . . [Lopez] had some black and red DKNY jeans, black and red Fila sneakers," and Twin was wearing "black sweats, DKNY, the black and red DKNY, . . . with black sneakers and a hoodie." (Id. at 20, 64-65.)
The day after Mr. Kirby's March 20, 2006 deposition, Mr. Kirby was interviewed by two investigators for the Civilian Complaint Review Board ("CCRB"). (See doc. no. 50, Exh. E, CCRB Interview of Anthony Kirby, dated 3/21/06.) At the interview, Mr. Kirby again explained that Twin "wanted me to watch out and see if any cops was gonna coming," and that after he heard gunshots, he ran around the block and returned to see "Carlos laying down on the floor, with his head down." (Id. at 5-6 and 22, 28.) A detective "grabbed Carlos, and dragged him across the street . . . turned him around, handcuffed him, and put his knee in his back," and refused an off-duty ambulance driver's requests to administer emergency medical aid. (Id. at 7-8.) Mr. Kirby also stated that Lopez was originally standing by the bus stop. (Id. at 7.)
After plaintiff produced Mr. Kirby's CCRB testimony, the City requested that Mr. Kirby again be transferred to Sing Sing State Correctional Facility in order to testify at a second deposition regarding this "new information." (See doc. no. 41, Letter filed by defendant, dated 11/2/06.) Plaintiff objected to the City's request, stating, "[t]he only . . . 'new information' is a statement made by Mr. Kirby to the CCRB . . . While counsel alludes to 'other information' obtained in discovery, none of it relates to this non-party witness." (Doc. no. 42, Letter filed by plaintiff, dated 11/6/06, at 1.) In addition, plaintiff noted that Mr. Kirby "admitted to participation as a look-out in the shooting of James Hodge," and though he had not yet been charged in the Hodge murder, he could be as "there is no statute of limitations on murder under the New York State law." (Id.) Accordingly, plaintiff asserted that Mr. Kirby could, "if he wishes[,] refuse to answer any questions relating to the Hodge murder pleading the Fifth Amendment," and "should be advised of his right to an attorney." (Id. at 1-2.)
At a status conference on November 6, 2006, the court again ordered that Mr. Kirby appear for a deposition, and further ordered:
The plaintiff requested that Mr. Kirby be advised that he may retain counsel, despite the fact that plaintiff did not previously so advise Mr. Kirby when he was deposed pursuant to plaintiff's subpoena . . . . The court . . . orders that defendants [sic] advise Mr. Kirby, by letter, that he may retain counsel to represent him at his deposition if he chooses to do so.
(Minute Entry, dated 11/6/06.) The court specifically did not rule that Mr. Kirby had the right to be represented by counsel nor direct that he be advised of such right.
On February 15, 2007, the City moved this court for an order "precluding the testimony of plaintiff's witness, Anthony Kirby, from being offered by plaintiff at trial, on summary judgment, of for any other purpose . . . ." (City's Motion at 1.) The City contended that, at his second deposition, on December 12, 2006, Mr. Kirby "refused to answer questions . . . pursuant to instructions he was given the day before by the plaintiff in this action, Carolyn Lopez." (Id.) The City explained:
After three preliminary questions, Mr. Kirby stated under oath that his "aunt" (the plaintiff, Carolyn Lopez) instructed him not to answer any of the City's questions unless "his lawyer," who he identified as the plaintiff's lawyer, Derek Sells, was present. Kirby testified that the plaintiff "told me what to say" and that "her lawyer told her and she relayed it to me," on the telephone the evening before. Kirby did not assert any right, constitutional or otherwise, in refusing to testify, and gave no reason other than the plaintiff's instructions. (Id., citing Exh. A, 12/12/06 Deposition Transcript of Anthony Kirby ("12/12/06 Kirby Dep. Tr."), at 4-7, 9, 10.) At his December 12, 2006 deposition, Mr. Kirby testified:
A: My aunt told me I can't answer no questions or none of that.
Q: [by counsel for the City, Kathleen Kilduff, Esq.] Your aunt told you --
A: She said don't answer nothing.
Q: She told you not to answer anything?
A: Don't answer nothing because my lawyer is not here. . . . .
Q: Now, is it your -- you are saying that today you refuse to answer any questions relating to Carlos Lopez?
A: Yes, that's what was told to me, and that is what I am ...