This case is not published in a printed volume and its disposition appears in a table in the reporter.
Carol Robinson Edmead, J.
I am "not aware of any rule or law which requires civility between counsel" (Thomas B. Decea, Esq.).
The genesis of this application is a claim of contumacious, abusive, and strident conduct by counsel during a deposition.
Michelle Rice, Esq. ("Rice"), moves pursuant to CPLR 3104 for a Court-appointed referee to supervise further depositions in this case and for an order directing that further depositions be held at the courthouse. Rice represents the defendant/third-party plaintiff, Lowenstein Sandler PC ("Lowenstein LP"), against claims of legal malpractice by plaintiff Laddcap Value Partners, LP ("Laddcap Partners").
On October 1, 3 and 4, 2007, Rice took the deposition of plaintiff's representative, Robert B. Ladd (the "witness"), who, along with Laddcap Value Associates ("Laddcap Associates"), are third-party defendants in this action. The witness is the sole employee of both plaintiff Laddcap Partners and Laddcap Associates. The witness was represented by Mr. Thomas B. Decea ("Decea").
Rice's motion is precipitated by the behavior of Decea during the three days of depositions of the witness. Rice points out that during the course of the witness's deposition, Decea repeatedly directed the witness not to answer certain questions posed to him, which were, on many occasions, followed by inappropriate, insulting, and derogatory remarks against Rice concerning her gender, marital status, and competence. Although both counsel agreed that all objections, except those as to form, were preserved, Decea made numerous speaking objections, and threatened to leave the deposition in response to such "leading" questions. Rice also contends that Decea asked her several times, off the record, whether she was married.
In light of the above, Rice argues that Decea's conduct was intended to intimidate her and interfere with her ability to zealously defend and conduct further depositions, in violation of New York's Code of Professional Responsibility, EC 7-37, DR 1-102 [A], New York Executive Law 296 ((1)(d), Rules of the Chief Judge of New York 25.16, and Uniform Rules for the Conduct of Depositions. Because of Decea's tactics and his demonstrated inability or unwillingness to comply with rules governing professional conduct, the Court should exercise its discretion under CPLR 3104(a) and appoint a special referee to ensure that the depositions are completed in a timely and cost-effective manner.
In opposition, Decea maintains that while he "aspires to be civil" to other counsel, he is "not aware of any rule or law which requires civility between counsel." According to Decea, that Rice was intimidated by him was "unfortunate" and does not substantiate any improper actions on his part. Decea complains that Rice was antagonistic toward him and the witness, was sarcastic with her questions, and harassing with her facial expressions. When Rice threatened to file a complaint against him with the Court, Decea asked to speak with her privately, whereupon both parties shook hands in agreement that if she refrained from asking leading and compound questions and badgering the witness, he would try not to interrupt her and limit his objections. According to Decea, "There was never another word about it for the rest of the week." When Rice threatened to contact the Court during the first day of depositions, Decea offered to arrange a conference call. However, Rice then declined, and continued the deposition. Now, on the eve of producing her client for a deposition, Rice "plays the gender card." Decea claims he instructed the witness not to answer approximately four times, and on each occasion, stated the basis for his objection an proffered a proper question. Decea contends that his references to "hun" and "girl" were not malicious, and if Rice would have advised him that she was offended, he would have stopped. If Rice was truly offended, she would not have completed three days of depositions. Rice's motion is a delay tactic to permit her client to assess the plaintiff's testimony and justify the fact that Rice is unavailable to for the deposition of her client scheduled for the following week. Decea intends to move for costs and sanctions against Rice and her firm.
There is no question that the Court has discretion to oversee the discovery of cases brought to the Court's attention ( Estate of Ungar ex rel. Strachman v Palestinian, 44 A.D.3d 176, 841 N.Y.S.2d 61 [1st Dept 2007]; In re Steven B., 24 A.D.3d 384, 385, 807 N.Y.S.2d 29  ["given the crushing caseloads ... judges face ... they are vested with broad discretion to advance cases fairly and cautiously, but also expeditiously"], affd. 6 N.Y.3d 888, 817 N.Y.S.2d 599, 850 N.E.2d 646 ). This discretion includes the power, pursuant to CPLR 3104, to appoint a referee to likewise oversee the discovery process and direct that the discovery, such as a deposition, be held in the courthouse (Kogan v Royal Indem. Co., 179 A.D.2d 399, 577 N.Y.S.2d 849 [1st Dept 1992] [stating that the decision to appoint a referee pursuant to CPLR 3104 "is a matter within the discretion of the trial court and is especially appropriate where, as here, a party appearing pro se is hostile or otherwise frustrates discovery]). At issue is whether the circumstances surrounding the depositions thus far warrant the appointment of a referee to oversee further depositions at the courthouse.
The following are some examples of the colloquy between Rice and Decea:
MR. DECEA: What I want to do is get you mad enough so I can try this case.
THE WITNESS: She won't be at trial.
MR. DECEA: Promise you'll let me try this case.
MS. RICE: You should look me up, man.
A. I did.
Q. Obviously not well enough
A. I didn't look into whether you're married or not.
MR. DECEA: We're interested as to why you don't wear your wedding ring.
MS. RICE: Is that right? You can be interested all you want.
MR. DECEA: I'm very interested.
(EBT., Vol. 2, page 192)
MS. RICE: Attacking everyone at the table accomplishes absolutely nothing.
MR. DECEA: What accomplishes nothing is your inability to conduct a deposition. This is not an interview which apparently you're more accustomed to doing than takingdepositions.
THE WITNESS: I agree.
MS. RICE: That's wonderful. This line is --
MR. DECEA: This is not a white collar interview that you're sitting here interviewingsomething with your cute little thing going on.
MS. RICE: My cute little thing?
MR. DECEA: This is a deposition that has rules about what kinds of questions you can ask and how to ask them. You've led him the entire morning. You led him all day Monday when there's no reason to lead him. If you want to lead him to get into a subject area I can understand that and I'll let that go, but when you get to the subject area ask him nonleading questions.
MS. RICE: Mr. Decea, you conduct the type of deposition you wish to conduct, I conduct the type of deposition I wish to conduct.
MR. DECEA: And I respect that. I'm just saying respect my defense, respect my defense of the litigation, that's all. Nothing personal, dear.
MS. RICE: Nothing personal, dear, let's see. I can't tell you the number of things that you have said were more than personal and certainly offensive and probably --
MR. DECEA: You told me you're not offended.
MS. RICE: Listen, listen.
THE WITNESS: Now she's ...