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Ohlson v. Cadle Company


April 16, 2010


The opinion of the court was delivered by: Hurley, District Judge


Presently before this Court is Defendants' appeal, brought on by Order to Show Cause (Dkt. No. 156), of Magistrate Judge Boyle's Order dated March 1, 2010 (Dkt. No. 148), which granted Plaintiff's letter motion to compel depositions, held that the depositions could be videotaped, and denied without prejudice Defendants' request for the pre-payment of fees to attend the depositions in Ohio.

I. The Standard of Review

This Court reviews a Magistrate Judge's decision regarding non-dispositive pretrial matters under a "clearly erroneous or contrary to law" standard. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). Discovery matters generally are considered non-dispositive of litigation. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990).

An order is "clearly erroneous" only if a reviewing court, considering the entirety of the evidence, "'is left with the definite and firm conviction that a mistake has been committed'"; an order is "contrary to law" when it "'fails to apply or misapplies relevant statutes, case law, or rules of procedure.'" E.E.O.C. v. First Wireless Group, Inc., 225 F.R.D. 404, 405 (E.D.N.Y. 2004) (quoting Weiss v. La Suisse, 161 F. Supp. 2d 305, 320-21 (S.D.N.Y. 2001)). This standard is "highly deferential," "imposes a heavy burden on the objecting party," and "only permits reversal where the magistrate judge abused his discretion." Mitchell v. Century 21 Rustic Realty, 233 F. Supp. 2d 418, 430 (E.D.N.Y. 2002).

II. Defendants' Contentions

Defendants argue that the Order appealed from is erroneous because (1) no deposition notices were ever served by Plaintiff; (2) the depositions are irrelevant to the remaining issues; (3) the videotaped depositions are sought to merely embarrass and harass; and (4) defendants should be granted costs of their counsel's attendance at the depositions in Ohio in advance of the depositions.

III. Discussion

Having reviewed the March 1, 2010 Order, the Court finds it is neither clearly erroneous nor contrary to law.

A. Compelling Depositions Despite Claim Notices Were Not Served Was Appropriate

With respect to the alleged failure to serve deposition notices, some background information is in order.*fn1 On January 5, 2007, Judge Boyle stayed discovery pending the outcome of defendants' motion for summary judgment and plaintiff's motion for partial summary judgment. (Dkt. No. 89.) On September 30, 2008, the Court issued a ruling on the summary judgment motions. (Dkt. No. 108.) By Order dated December 18, 2009, the Court issued a further ruling finding that the failure to serve defendants Bobby D. Associates, Daniel C. Cadle, Steven Vlock and Vlock and Associates with a summons did not provide a basis for dismissal of the claims that remain as against them. (Dkt No. 126.) Thereafter, on December 22, 2009 Plaintiff wrote to Judge Boyle requesting a conference and entry of a scheduling order for discovery on the remaining issues. Attached to that request were notices of deposition for Ray Diamond, John Cadle, and Steven Vlock dated December 21, 2009. (Dkt. No. 127.) Defendants opposed the request. (Dkt. No. 128.) By Order dated January 12, 2010, Judge Boyle scheduled a conference for January 25, 2010. (Dkt. No. 135.) In a letter dated January 14, 2010, Defendants requested that in lieu of the conference, Judge Boyle "continue the stay, which was effective since your Honor's Order, dated January 5, 2007" because, among other things, they were awaiting this Court's ruling on their application for a briefing schedule for a renewed motion for summary judgment. (Dkt. No. 136.) By endorsed Order dated January 21, 2010, Judge Boyle denied Defendants' application. On January 25, 2010, a conference was held at which Judge Boyle ordered that all discovery, including experts and class discovery, be completed by April 30, 2010. (Dkt. No. 138). Plaintiff then made his letter application dated February 3, 2010 (Dkt. No.141), which application gave rise to Judge Boyle's March 1, 2010 Order.

In the February 3, 2010 application, Plaintiff's counsel represented, among other things, that on January 26, 2010, he forwarded correspondence via fax to counsel for Defendants which included copies of previously served notices of depositions for Defendants Stephen Vlock, Daniel Cadle and Ray Diamond. The January 26, 2010 letter states is pertinent part:

Enclosed herein please find copies of the notices of depositions of Daniel Cadle, Ray Diamond and Stephen Vlock which were previously sent to your law office. I am including said copies herein based upon your advisement to Magistrate Judge Boyle that your office had not received the herein notices.

Please provide dates within the next 30 days upon which Mr. Cadle, Mr. Diamond and Mr. Vlock are available to be deposed. (Dkt. No. 141 at p. 3.) Also on February 3, 2010, Defendants brought an order to show cause seeking a protective order from discovery, or, in the alternative, compelling plaintiff to pay Defendants' costs of attendance at depositions. (Dkt. No. 143.) The Court declined to sign the Order to Show Cause, stating in pertinent part: "It appears that the request for a protective order arises out of January 26, 2010 correspondence between counsel whereby Plaintiff sought dates for deposition, as well as correspondence dated February 3, 2010 addressed to Judge Boyle whereby Plaintiff seeks an order compelling depositions. Discovery disputes are to be addressed by the presiding Magistrate Judge in the first instance.... It does not appear that Defendants have sought a protective order from the notices sent with the January 26, correspondence, nor does it appear that Judge Boyle had addressed Plaintiff's February 3, 2010 application...." (Dkt. No. 145.) On February 5, 2010 Defendants' filed a letter in opposition to Plaintiff's request for an order compelling depositions. In that letter, Defendants argued that a decision as to discovery should await this Court's clarification of what issues remain. They further argued as follows:

Furthermore, [Plaintiff's] counsel application to your Honor is premature and unnecessary. There is no discovery dispute herein because [Plaintiff's counsel] has never properly issued and served any Notices. [Plaintiff's counsel] has consistently acted in contravention of the Federal Rules, Local Rules, Individual Rules and Orders of the Court, so much so that the Court has ordered that further violations will result in the Court deeming the documents nullities. Thus, the only reason why Defendants are even responding herein is because, as an attachment to his letter motion filed via ECF, [Plaintiff's counsel] attached copies of the deficient Notices, which were not only issued when discovery was stayed and are outdated, but the deficient Notices were also never served on our office. (Dkt. No. 146.)

Having placed the dispute in context, the Court has no trouble concluding that Judge Boyle did not abuse his discretion in compelling the depositions over Defendants' claim that deposition notices had not been properly served.. The Court's ECF system indicates that Plaintiff's December 22, 2009 letter with the attached deposition notices were received by counsel for Defendant. The Local Rules provide that a paper served and filed by electronic means is properly served for purposes of Federal Rule of Civil Procedure 5. See Local Rule 5.2. Accordingly, at the very least, the notices of deposition were properly served upon Defendants when Plaintiff filed them via ECF on December 22, 2009 as part of his request for a conference. No stay of discovery was in effect at that time as Judge Boyle's stay expired when this Court issued its summary judgment decision on September 30, 2008. In any event, given the history of this case, only a portion of which has been recounted above, even assuming that the notices had not been "properly" served, Judge Boyle's did not abuse his discretion by cutting to the chase and directing that depositions take place so that this six year old case could move towards a final resolution as it was apparent that Defendants were resisting discovery despite Judge Boyle's January 25, 2010 Order.

B. The Depositions are not Irrelevant as More Than One Issue Remains

Defendants also maintain that Judge Boyle abused his discretion is ordering the depositions because they are irrelevant to the remaining "issue" in this case. Defendants' argument is tied to their motion for reconsideration of this Court's Order dated March 2, 2010 wherein the Court addressed what claims remain pending in this action. Defendants maintain that, contrary to this Court's March 2, 2010 determination, the only claim that remains in this action is the claim against the Vlock defendants*fn2 which pertains to the summons and complaint in the state cause of action. According to Defendants, the discovery sought is irrelevant as it does not pertain to that one claim. It suffices to say that in a separate Order issued this date the Court has rejected the motion for reconsideration and Defendants' assertion that only one claim remains in this action. The Court has adhered to its earlier determination that in addition to the claim against the Vlock defendants, there are claims which remain outstanding against Daniel Cadle, Bobby D. Associates, and Ray Diamond.

In the present application, Defendants, as a supplement to their argument that only one claim remains, raise an issue they did not raise in their motion for reconsideration, to wit: Plaintiff admitted in a Memorandum submitted in the Southern District of New York, that the instant matter "concerned only four issues, two of which have been unequivocally dismissed." (Giordano Reply Aff. (Dkt, No. 162) ¶ 8.) It is to this contention that the Court now turns.

It appears that in 2009, Plaintiff commenced an action in the Southern District of New York against Daniel C. Cadle, Vlock Associates, P.C., Stephen Vlock, Steven Giordano and Ray Diamond and that the defendants therein moved to dismiss the complaint. That motion was premised in part on the argument that dismissal was required because "of an 'alleged prior action pending' [referring to the instant Eastern District of New York action] between the same parties for the same relief sought...." (Ex. A to Giordano Reply Aff. at p. 4.) Plaintiff filed a memorandum in opposition to that motion, which memorandum contains, inter alia, the following information offered by way of the background leading up to the suit in the Southern District:

Plaintiff named herein was a defendant in an action in the Civil Court of the City of New York. Plaintiff herein was alleged to be indebted to an entity which alleged that it received an assignment of a credit card account which was opened by the Plaintiff's brother in 1980. Defendant Vlock & Associates, P.C. served as counsel of record for the alleged plaintiff in the Civil Court action. In conjunction with a motion for summary judgment brought by the Plaintiff in the Civil Court action, the Defendants Stephen Vlock, Steven Giordano and Ray Diamond submitted affirmations and an affidavit each replete with false, deceptive and misleading statements. Plaintiff commenced the herein action based upon said affirmations and affidavit. The Defendant Daniel C. Cadle is named as a Defendant herein [referring to the southern District action] as he personally controlled the policies and practices invoked by Defendants Vlock, Giordano and Diamond which violate the FDCPA. (Ex. A to Giordano Reply Aff. at p. 2.) With respect to the argument that dismissal of the Southern District case was required because of the prior pendency of the instant (i.e. Eastern District) action, Plaintiff responded, in part, not only that the time frame of relevant events differed significantly in the two actions, but also: the FDCPA case pending in the Eastern District of New York, and relied upon by the Defendants, is based upon different facts and claims, i.e. the true owner of a debt, requesting a de minimis payment to revive a statute of limitations, alleging false deadlines and failure to provide the 30 day debt verification and dispute rights accorded by the FDCPA. Any adjudication therein by the Eastern District of New York concerns these claims only.

(Id. at p. 4.)

The Court agrees with Defendants that Plaintiff's position in the Southern District case is inconsistent with the position taken herein as he stated in the Southern District the existence of only four claims in the instant action in contrast to the seven he now asserts remain undecided.. That admission, however, is not dispositive. The best evidence of what is in the amended complaint is the amended complaint itself. As explained in the Court's March 2, 2010 Order, the amended complaint discloses there are more claims in this action than just the four claims mentioned by Plaintiff to the court in the Southern District. The three persons sought to be deposed are named defendants against whom claims remain and, accordingly, are subject to deposition.

In sum, the Court rejects Defendants' assertion that the Order appealed from should be reversed because the depositions are irrelevant to the remaining issues in this case.

C. Videotaped Depositions are Permissible

The last matters to be addressed relate to the videotaping of the depositions and fees for attendance in Ohio. In view of Plaintiff's letter dated April 5, 2010 (Dkt. No. 168) wherein he advises Judge Boyle that he agrees to conduct the depositions of Cadle and Diamond telephonically, the portion of Defendants' appeal relating to the videotaping of Cadle and Diamond and the fee issue*fn3 is moot. Nonetheless, the Court must address the videotaping issue to the extent that Plaintiff still seeks to videotape the deposition of Steven Vlock.

The Court agrees with Judge Boyle's conclusion that Plaintiff has the right, pursuant to Fed. R. Civ. P. 30(b)(3)(A), to designate the method of recording the deposition and that videotaping is an authorized method. The Court finds unconvincing Defendants' argument that there is must be a bona fide purpose for videotaping the depositions and that no such purpose exists in this case. Paisley Park Enterprises, Inc. v. Uptown Productions, 54 F. Supp. 2d 347 (S.D.N.Y. 1999), relied on by Defendants, did not hold that there must be a bona fide purpose in order for a deposition to be videotaped. Rather, that court presumed the existence of a bona fide purpose given that Rule 30(b)(2) was amended to permit videotaped depositions "as a matter of routine in recognition of the fact that the videotapes are a means of presenting deposition testimony to juries that is superior to reading from cold, printed records." Id. at 349. In any event, a proper litigation purpose does exist in that at the very least videotaping will allow the jury to assess the credibility of the witness. Like Judge Boyle, this Court concludes that Defendants' assertion regarding "the history of unprofessional conduct [of Plaintiff's counsel] poses a very real threat that the videos will be used by him for an improper purpose" is an inadequate predicate for precluding the videotaping of the depositions. Defendants fail to specify what that "improper purpose" is. Cf. Paisley Park, 54 F. Supp. 2d at 348-49 (permitting videotaping of deposition over objection of plaintiff but requiring that videotape be used solely for purposes of subject litigation given defendants' likely use of deposition to generate content for broadcast and other media). Moreover, given the acrimony that exists between counsel in this case, one would surmise that a visual record of the depositions may prove beneficial.


The appeal is denied.


Denis R. Hurley Senior District Judge

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