The opinion of the court was delivered by: VIKTOR V. Pohorelsky United States Magistrate Judge
The defendants have moved for sanctions against the plaintiff Alicia Carter based on the plaintiff's alleged untruthfulness at her deposition. Specifically, the defendants seek reimbursement for the costs of a private investigator they hired in an effort to locate a non-party witness, Andre Dedmon, in order to serve a subpoena on him to obtain his deposition testimony. They hired the investigator after the plaintiff testified in her deposition that she had not spoken to him for quite some time and had no idea how to contact him. When later deposition testimony by her younger brother, a minor who will be referred to here as Q.S., directly contradicted the plaintiff's testimony about the plaintiff's recent contacts with Dedmon, the defendants brought this motion.
This action arises from the plaintiff's arrest on October 5, 2010 following an incident involving Q.S. at his school. When the plaintiff and Dedmon, who was her boyfriend at the time, arrived at the school that day, they encountered various school safety officers who were in the process of removing Q.S. from the school in handcuffs. The parties dispute precisely what happened at that point, but both the plaintiff and Dedmon were themselves arrested and charged with various offenses. Dedmon eventually pleaded guilty to obstructing governmental administration and was sentenced to 10 days of imprisonment. The plaintiff's charges were ultimately resolved by an adjournment in contemplation of dismissal in April 2011.
As Dedmon was obviously an eyewitness to the events that led to both his and the plaintiff's arrest, the defendants were interested in obtaining deposition testimony from him. To that end, they sought to obtain information about his whereabouts from the plaintiff in a deposition on February 8, 2012. The plaintiff disclaimed all knowledge about how Dedmon might be located. She testified that their relationship ended amicably around Valentine's Day a year earlier because they had different goals in life. She said that she had spoken to him on occasion thereafter by telephone, but that the last time she had spoken to him was in the summer of 2011 before she lost her cell phone in a sewer. At one point during her testimony she said, "I don't even know where he would be." Carter Dep. Tr. at 23:22.*fn1 At another, in response to a question about whether she knew any way she would be able to contact him, she said, "I have no idea." Id. at 26:8.
The testimony by her younger brother Q.S., who is 13 years old, approximately six weeks later on March 22, 2012 directly contradicted Carter's testimony concerning her contacts with Dedmon and her knowledge of his whereabouts. When asked who lived with him aside from his mother and the plaintiff, Q.S. offered without any prompting that Dedmon was living at the address, and had been living there for five or six months. He saidi that he saw Dedmon "every day mostly," although Dedmon did go to his own mother's house "off and on." Q.S. Dep. Tr. at 10:13 and 6.*fn2
In order to assess the credibility of the plaintiff and the reliability of Q.S.'s testimony in light of the direct contradictions between his testimony and his older sister's, the court held a hearing on April 23, 2012 at which they both testified. In addition, the plaintiff called her mother, Cheryl Boatwright, in an effort to corroborate her own testimony.
The plaintiff's testimony only raised further questions about her credibility. In contrast to her deposition testimony concerning an amicable breakup with Dedmon in February 2011, she revealed that she had filed a domestic incident report charging him with harassment some six months later on August 11, 2011. She insisted at one point that Dedmon had never lived with her, but at another point testified that in or about August 2011 the police were called to her home to escort Dedmon, along with his belongings, from the apartment. Despite her deposition testimony that she had no idea how to contact Dedmon, she now admitted that she had seen him from time to time after August 2011 in the neighborhood. She conceded that, after her deposition but before Q.S.'s, Dedmon and she had resumed their relationship briefly, and that he had stayed with her twice a week for a total of 12 times or so during that period. She attributed Q.S.'s "confusion" about the nature and duration of her relationship with Dedmon to this brief period of rapprochement.
Although Q.S.'s testimony at the hearing retreated a little from the testimony at his deposition with respect to whether Dedmon lived at the apartment and the nature of Dedmon's relationship with his sister, he continued to maintain that Dedmon had regularly been at the apartment during the five- to six-month period prior to his deposition, testifying as follows:
Q. Mr. S., you also testified that during that five or six month period before March 22nd, 2012, Andre Deadman [sic] stayed at your apartment approximately five days per week. Was that a true statement?
A. Yes, it was. He -- he would -- he wouldn't be there the whole entire day because of course he would go to this other house, but he would be there off and on every week.
Q. Okay. You also testified, Mr. Summers, that in the five or six months before March 22nd, 2012, that you saw Andre Deadman every day. Was that a true statement?
A. Not every single day, I said, but I seen him a couple of times each week.
Tr. at 50:4-15.*fn3 To the extent that his testimony at the hearing retreated from his deposition testimony, it is likely attributable to a conversation Q.S. testified that he had with the plaintiff a week before the hearing in ...