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Nonie Pegoraro v. Ernesto Marrero

November 2, 2011

NONIE PEGORARO, PLAINTIFF,
v.
ERNESTO MARRERO, INDIVIDUALLY AND IN HIS CAPACITY AS CORPORATE COMPLIANCE OFFICER; NEW YORK CITY HEALTH AND HOSPITAL CORPORATION; ALAN AVILES, PRESIDENT, NEW YORK CITY HEALTH AND HOSPITAL CORPORATION; CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge

MEMORANDUM AND ORDER

BACKGROUND

Plaintiff Nonie Pegoraro alleges her employment was terminated by the defendants wrongfully, based on her whistle blowing activities. She seeks damages and injunctive relief. Before the Court is the plaintiff's motion "to compel production of discovery demands and production of witnesses demanded for depositions" and for "attorney's fees to Plaintiff due to the necessity of filing this motion as authorized by Rule 37(a)([5])A of the Federal Rules of Civil Procedure." The defendants oppose the motion.

The plaintiff contends that, on February 15, 2011, she "served her Document Requests, Interrogatories and Notices of Deposition for ten witnesses," and that the defendants failed to produce: (1) documents regarding previous whistle-blower litigation against Ernesto Marrero ("Marrero"); (2) notes of interviews conducted by the defendants' agents in connection with the plaintiff's complaint of retaliation; (3) notes of investigations and interviews by the staff of the defendants' Office of Inspector General ("OIG"); (4) documents relating to a lawsuit by a former employee against Marrero and Health and Hospital Corporation ("HHC") involving whistle-blowing; (5) e-mail communications among the plaintiff and other employees of the defendants; and (6) Marrero's personnel folder. According to the plaintiff, the documents requested contain relevant information. For example, the plaintiff argues, Marrero's personnel folder "will include documentation of his history targeting whistle blowers and the ethical complaints made against him by Deborah Gregory a whistle blower he terminated at Bellevue." Moreover, e-mail communications among the plaintiff, Dr. Ramanathan Raju ("Dr. Raju") and other employees will show that the plaintiff's "performance was not an issue and that corporate officers have been discussing how to terminate Plaintiff illegally."

The plaintiff maintains that the defendants also failed to respond to the following interrogatories requesting that they identify: (a) cases against Marrero based on whistle-blowing (Interrogatory No. 1) and the tapes and reports written about the related investigations (Interrogatory No. 6); (b) individuals contacted by Marrero and Alan Aviles ("Aviles") in connection with this case (Interrogatory No. 8); (c) research programs terminated or suspended during the plaintiff's tenure "as a result of non compliance" and complaints against Marrero by Deborah Gregory ("Gregory") (Interrogatory No. 11); (d) the written warnings about Marrero's ethics and compliance issues provided to the defendants by Jean Gatewood (Interrogatory No. 15); (e) audits conducted at Harlem Hospital during the plaintiff's tenure (Interrogatory No.17); (f) "reports provided by Huron Consulting, an outfit hired by Plaintiff with executive approval to audit the research process" (Interrogatory No. 19); (g) the audits conducted by the plaintiff at Bellevue Hospital in reference to Research Billings Control (Interrogatory No. 24); and (h) non- privileged discussions between Richard Levy, Esq. and the plaintiff (Interrogatory No. 25). The plaintiff contends that her interrogatories will elicit relevant information revealing that the researchers who complained about the plaintiff are those whose work she audited at Aviles's direction. Furthermore, according to the plaintiff, the defendants should "identify previous cases of retaliation against Deborah Gregory" as well as the notes and records of the investigation of the plaintiff's retaliation complaints.

The plaintiff contends, the defendants objected to her request to depose Aviles, HHC's president, and Dr. Raju, HHC's executive vice president, "solely on the ground that these witnesses are high agency officials." Additionally, the defendants objected to the plaintiff's "request to depose Ms. Lisa Lee ["Lee"] and Mr. Louis Panarella ["Panarella"], two investigators from defendants' Inspector General's office . . . on the ground that there is an open investigation." The plaintiff argues that Aviles should testify at a deposition because he approved the plaintiff's actions and she should be allowed to probe him about the facts concerning her termination. The plaintiff also maintains that Dr. Raju should give deposition testimony because he gave the plaintiff an "outstanding performance rating for 2007-2008," but stated that she was disloyal when she spoke to the New York Times, and the plaintiff should be allowed to probe him on that issue. Furthermore, investigators Lee and Panarella should testify, at depositions, because they conducted an investigation about the plaintiff's complaint of retaliation and she "should have the right to depose" them.

The defendants contend, in the part of their memorandum of law entitled "Preliminary Statement," that the plaintiff's motion should be denied because it is untimely. According to the defendants, the plaintiff's discovery requests were late because she was required, by the scheduling order dated September 24, 2010, to serve her document requests by October 25, 2010, and interrogatories by November 22, 2010. Moreover, discovery closed on January 31, 2011. The defendants maintain that the plaintiff failed to comply with the schedule, serving her discovery requests on February 15, 2011, after the period for pretrial discovery closed. The defendants contend that Aviles and Dr. Raju, are "high level government officials" and do not possess any unique knowledge relevant to this action. The defendants maintain that the plaintiff testified at her deposition that she suspended Columbia University from conducting research on the instructions of certain attorneys, not Aviles, and it is false for the plaintiff to argue that "the President of HHC, who was not plaintiff's supervisor and who was several levels above the plaintiff's supervisor in the hierarchy, would be so involved with plaintiff's duties that he personally approved plaintiff's improper and unauthorized act of suspending Columbia from conducting further research." Furthermore, according to the defendants, Aviles did not approve the plaintiff's termination and, even if he supported it, his knowledge about it "is far from unique." The defendants contend that "it is unclear how a purported statement by Dr. Raju that he wanted to terminate plaintiff's employment nearly a year before she engaged in a protected activity can possibly demonstrate she was terminated for her complaints to the OIG and the New York Times in April 2009." Moreover, Dr. Raju has no unique knowledge about the reasons for the plaintiff's termination, and it is "unnecessary to depose Dr. Raju because he did not discuss or make any decisions concerning the termination of plaintiff's employment." With respect to the plaintiff's request to depose Lee and Panarella, the defendants contend they will produce them, "[a]s long as plaintiff limits her inquiry to her complaint that her employment was terminated in retaliation for filing prior complaints with the OIG and conducts the depositions after the OIG concludes its investigation into that retaliation claim." According to the defendants, "[i]t is inappropriate to inquire into other areas of OIG investigations, which are protected by the law enforcement privilege." The defendants contend that the plaintiff can obtain information from other sources, and deposing Lee and Panarella, while the investigation is active, would be compromising. They argue that their objections to the plaintiff's document request Nos. 3, 5, 12, 14, 15, 19 and 26 and interrogatories Nos. 1, 6, 8, 11, 15, 17, 19, 24 and 25 are proper because those requests seek irrelevant information, and the plaintiff "seeks discovery in an effort to prove that her complaints to the OIG and the New York Times were true."

LEGAL STANDARD

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26 (b)(1). "[T]he scope of discovery under Fed. R. Civ. P. 26(b) is very broad, 'encompass[ing] any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'" Maresco v. Evans Chemetics, Div. of W. R. Grace & Co., 964 F.2d 106, 114 (2d Cir. 1992) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389 (1978)). "A party seeking discovery may move for an order compelling an answer, designation, production, or inspection." Fed. R. Civ. P. 37(a)(3)(B). Motions to compel made pursuant to Fed. R. Civ. P. 37 are "entrusted to the sound discretion of the district court." United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000). Timeliness

Although the defendants's preliminary statement to their memorandum of law contends that the plaintiff's motion should be denied as untimely, the defendants did not make any argument or citation to any authority in support of that contention in their memorandum of law, in violation of Local Civil Rule 7.1. It appears that both the plaintiff and the defendants failed to comply with the court's September 24, 2010 scheduling order. Since the defendants used their failure to comply with the discovery schedule to their advantage, and do not claim the plaintiff's failure to comply with the discovery schedule prejudiced them in any way, equitable estoppel principles militate against a finding that the plaintiff's motion is untimely based on the plaintiff's failure to comply with the discovery schedule. See Davis v. Wakelee, 156 U.S. 680, 689, 15 S. Ct. 555, 558 (1895) ("[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.").

Rule 30 Depositions by Oral Examination

Rule 30 of the Federal Rules of Civil Procedure provides: "A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45." Fed. R. Civ. P. 30(a)(1). "A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address." Fed. R. Civ. P. 30(b)(1). A court "may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing agent . . . fails, after being served with proper notice, to appear for that person's deposition." Fed. R. Civ. P. 37(d)(1)(A).

Although the plaintiff stated that she served her "Notices of Deposition for ten witnesses," she provided no evidence of those notices or any details about their content. In support of her motion to compel, the plaintiff provided a copy of her letter to the court, dated June 13, 2011, in which she stated that "Defendants' witnesses were scheduled to be deposed in the second and third week of March 2011. These dates were cancelled to accommodate Defendants's scheduling conflicts and opportunity to receive Defendants' discovery responses." She also stated in that letter that, on June 9, 2011, the defendants informed her that they "will not be producing four witnesses because two are high agency officials and because the other two are working on the Pegoraro investigation which is still an open investigation." It appears from the plaintiff's motion that the plaintiff's notices of deposition were cancelled by the plaintiff to accommodate the defendants' schedule and no subsequent notices of deposition were given to the four witnesses at issue here: Aviles, Dr. Raju, Lee and Panarella. In support of her motion to compel, the plaintiff failed to provide evidence of any deposition notices. Moreover, the plaintiff does not seek sanctions pursuant to Rule 37(d) for failure of a party to attend its own deposition. Since the plaintiff may: (i) depose by oral questions any party or person, except under certain circumstances, which do not appear to apply here; and (ii) compel a proposed deponent's attendance by subpoena, under Rule 45 of the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 30, Rule 37 does not contemplate a motion for an order "to compel . . . production of witnesses demanded for depositions." Although Rule 37(d) provides sanctions for a party or a party's officer's failure to attend its own deposition, no evidence was presented and no argument made that the ...


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