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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 ...

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