The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge
Plaintiff Catherine Carlson ("Carlson") filed the instant action against defendants alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act, the New York State Human Rights Law and the Family Medical Leave Act. (Docket # 1). Carlson alleges that defendant David D. Pullen sexually harassed her and that defendants retaliated against her by, inter alia , demoting her after she complained about the harassment. ( Id .).
Currently pending before this Court are several discovery motions by the parties. Carlson has moved for protective orders seeking to prohibit defendants from deposing her or conducting any further discovery. (Docket ## 59, 74). Defendants have moved to extend the discovery deadline and to compel Carlson's and her ex-husband's depositions, as well as the production of records from certain health care providers. (Docket # 78). In addition, defendants seek to preclude Carlson from presenting any evidence regarding her alleged emotional distress as a sanction for failing to provide those medical records. ( Id .). *fn1 The following constitutes this Court's decision and order on the pending motions.
The discovery deadline has been amended four times in this action, the most recent deadline having expired on September 30, 2010. (Docket ## 36, 38, 43, 50). In support of her motions for protective orders and in opposition to defendants' motions for further discovery, Carlson contends that defendants have been dilatory and have not conducted discovery with the requisite diligence. Accordingly, I will summarize the relevant facts concerning the parties' conduct during discovery.
I turn first to Carlson's deposition and the deposition of her ex-husband. The parties first began negotiating a deposition date for Carlson in March 2010. (Docket # 79, Ex. S). After much dialogue between the parties, on July 2, 2010, defendants noticed Carlson's deposition for July 28, 2010. (Docket # 79, Ex. B). The day before the deposition was to take place, on July 27, 2010, defense counsel canceled *fn2 the deposition because they had not received
Carlson's medical records. (Docket ## 61, Ex. B; 79, Ex. L). Defendants did not attempt to reschedule Carlson's deposition until September 10, 2010. By letter of that date, defendants proposed that Carlson be deposed on September 23, 2010, the day on which depositions of certain defendants had already been scheduled. (Docket # 79, Ex. L). Plaintiff refused to reschedule those depositions. (Docket # 57, Ex. D). On September 21, 2010, defendants then served a notice of deposition for Carlson for September 23, 2010. (Docket # 61, Ex. A). Plaintiff filed the instant motion for a protective order on September 22, 2010. (Docket # 59).
In addition, defendants seek to depose Carlson's ex-husband, Craig, concerning Carlson's allegation that emotional distress from defendants' treatment negatively affected her marriage, ultimately resulting in divorce. (Docket # 94 at ¶ 21). Defendants did not raise the issue of deposing Carlson's husband's until September 21, 2010 -- nine days prior to the expiration of the discovery period -- at which time counsel also raised the issue of deposing a third-party witness. (Docket # 94, Ex. O). On September 27, 2010, plaintiff advised defendants that she did not oppose the deposition of Craig Carlson. (Docket # 94 at ¶ 26). On September 24, 2010, defendants noticed the deposition of the third-party witness, which then took place on September 29, 2010. ( Id .). On October 18, 2010, defendants noticed Craig Carlson's deposition for November 19, 2010. (Docket # 72). Because the notice was served after the discovery deadline, this Court ordered defendants to file a motion in the event that they wished to pursue deposing Craig Carlson. ( Id .; Docket # 73).
Defendants then filed the instant motion to compel the deposition of Craig Carlson and for reconsideration of this Court's October 21, 2010 order requiring them to obtain leave of the court to depose him. (Docket # 78).
II. Mental Health Records
Plaintiff also has moved for a protective order to prevent defendants from enforcing a subpoena issued by the District of Massachusetts and served upon Carlson's former mental healthcare provider, Christine E. Smith ("Smith"), who treated Carlson ...