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Koehl v. Greene

December 6, 2007


The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge


Currently before the Court in this prisoner civil rights action are four submissions recently filed by Plaintiff: (1) an opposition to Defendants' motion to take his deposition (Dkt. Nos. 44, 47, 50); (2) a motion for an order permitting Plaintiff to take the depositions of Defendants at the time and place, and in the manner, specified by Plaintiff (Dkt. Nos. 45, 47, 50); (3) a motion for a Court conference (Dkt. Nos. 48, 50); and (4) a motion to appoint counsel (Dkt. Nos. 49, 50). For the reasons set forth below, the Court withdraws its prior Order with regard to Defendants' motion to take Plaintiff's deposition, and issues a new such Order. Furthermore, the Court denies each of Plaintiff's three motions. Finally, the Court cautions Plaintiff regarding the abusive language contained in some of his recent submissions.


On October 2, 2007, Defendants requested an Order authorizing them to take Plaintiff's deposition. (Dkt. No. 41.) On October 4, 2007, the Court filed an Order granting that request. (Dkt. No. 43.) On October 6, 2007, Plaintiff sent to the Court his opposition to Defendants' motion. (Dkt. No. 44.) That opposition was filed on October 11, 2007. (Id.) Because I filed my Order granting Defendants' (rather routine) motion on October 4, 2007, without the benefit of having Plaintiff's opposition thereto, I hereby analyze Defendants' request anew, and amend my Order of October 4, 2007 accordingly.

In his opposition to Defendants' motion, Plaintiff asserts that he "does not object to defendants deposing him per se . . . [but] objects to the unnamed facility where the deposition[] will take place, the presence of security teams during the deposition[,] and the empowering of DOCS security personnel to dictate the terms and conditions of said deposition[]." (Dkt. No. 44, ¶ 3.) In particular, Plaintiff objects to the possibility that he will be moved a considerable distance for the deposition merely "as a means of harassment and retaliation." (Id. at ¶ 3.) In addition, he objects to having prison security personnel present in the room during his deposition, where they may (1) order him to answer deposition questions under penalty of being issued a misbehavior report if he does not do so, and (2) overhear Plaintiff's testimony regarding his confidential medical condition. (Id. at ¶¶ 5-6.) In support of these objections, he offers sworn testimony about his past experiences being deposed in prisoner civil rights actions against DOCS employees. (Id. at ¶¶ 4-5.)

In reply, Defendants argue that (1) the reason for of DOCS' non-disclosure of the location of the deposition is to maintain security, (2) the reason for the presence of security personnel in the room during Plaintiff's deposition is also to maintain security, particularly the security of the court reporter, and (3) Plaintiff's confidentiality argument fails because has placed his alleged medical condition at issue in this action, and in any event the allegedly confidential information in question would come out in open Court anyway should this matter proceed to trial. (Dkt. No. 46.)

In two sur-replies, Plaintiff argues, inter alia, that (1) the place for the deposition that is geographically most convenient to the parties is Great Meadow C.F., (2) should a trial occur in this matter, it may be held "under seal," and (3) at the very least, the Court should order that Plaintiff not be deposed on February 6, 2008, since he is scheduled to be deposed on that date in an unrelated matter pending in New York State Supreme Court, Kings County. (Dkt. No. 47, 50.)

Plaintiff has now been afforded all the process to which he is due with regard to Defendants' motion. After carefully reviewing all of the motion papers with respect to Plaintiff's deposition, I see no reason to disturb my previous Order except to make the following amendments to it: (1) defense counsel is directed to accommodate Plaintiff's request to not depose him on February 6, 2008, since he is apparently scheduled to be deposed on that date in an unrelated matter pending in New York State Supreme Court, Kings County; (2)defense counsel is directed to, in selecting a place for Plaintiff's deposition, make an effort to select a DOCS Correctional Facility that is within a reasonable distance of the facility in which Plaintiff is housed, such "reasonable distance" to be determined, in part, based on Departmental needs and availability; and (3) Plaintiff's disagreement with the time and/or place of his depositions is not a basis for refusing to go forward with the deposition.

I issue this ruling largely for the reasons stated by Defendants in their motion papers. (See generally Dkt. No. 46.) I would only add three points. First, with respect to the location of the deposition, such information will necessarily be required in the Notice of Deposition, pursuant to Rule 30 (b)(1) of the Federal Rules of Civil Procedure. Thus, pursuant to this Court's Order filed on October 4, 2007, Plaintiff will be advised of the location "at least 14 days prior to the scheduled day for his deposition . . . ." (Dkt. No. 43.)

Second, with respect to the presence of security personnel in the room during Plaintiff's deposition, the facility where Plaintiff will be deposed determines the level of security necessary to protect the facility as well as all persons involved in the taking of the deposition. This Court will not second-guess such determinations based upon Plaintiff's assertions. Of course, with respect to the answering of specific questions at the deposition, the Court does not relinquish its authority to oversee the conduct of this case, including the discovery. Thus, while the correctional facility may control the physical environment of the deposition, any dispute with respect to the propriety of a question, or a party's obligation to answer same, rests solely with this Court. I am confident that defense counsel understands this fact and the permissible use of security personnel at the deposition. (See Dkt. No. 41, ¶¶ 6-8 [McCartin Decl., requesting an order directing that Plaintiff may not refuse to answer questions due to a mere "disagreement with directives of security staff" regarding "security precautions," and stating, "[o]f course, such an order would not require the plaintiff to answer every single question; valid objections in good faith are always permissible.").

Finally, with respect to the asserted confidentiality of Plaintiff's medical condition,*fn1 Plaintiff has, in this action, asserted claims for damage to his health due to Defendants' alleged deliberate indifference. (Dkt. No. 1.) By asserting such claims, Plaintiff has, indeed, put his medical condition in question, and defendants are entitled to explore same with Plaintiff in his deposition, as well as in written discovery. Thus, his argument regarding privilege or confidentiality fails.


Plaintiff requests an Order directing that (1) Defendants submit to depositions conducted by Plaintiff, and answer all of Plaintiff's questions, except those questions regarding which they have, in good faith, made valid objections, (2) Defendants provide a room in a DOCS correctional facility near Plaintiff (preferably Great Meadow C.F.) during regular business hours, at which the depositions may occur, and (3) Defendants provide the means by which the depositions may be recorded, such as a stenographer, an ordinary tape recorder, or the recording device used in DOCS disciplinary hearings. (See, e.g., Dkt. No. 45, Part 1, ¶¶ 4, 7-9; Dkt. No. 47, at 1.)

As an initial matter, I note that Plaintiff ignores the cost associated with ensuring that the depositions are taken before a person authorized to ...

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