The opinion of the court was delivered by: Marilyn D. GO United States Magistrate Judge
This order summarizes and elaborates on rulings made at a conference held on July 25, 2012 with respect to two motions filed by defendants Alfay Designs, Inc. and Al Smaldone (collectively "defendants" or "Alfay") to compel and for sanctions. In the first motion, defendants raise various challenges to plaintiff's discovery responses and to the conduct of plaintiff's counsel at depositions taken by defendants. Ct. doc. 76. Defendants also filed a separate motion with respect to the deposition of Ms. Christina Ushijima, an attorney for Meyer, who was designated by Meyer to testify on various technical computer issues. Ct. doc. 77).
1. Defendants' First Motion to Compel
Defendants move to compel a further response to document request 8 of their Third Set of Document Requests, which seeks production of cost sheets or other documents showing "landed costs"*fn1 of all Farberware enamel steel tea kettles. Defendants seek, in particular, the cover e-mails transmitting monthly reports on the landed costs of Farberware products. Defs.' Mot. to Compel (ct. doc. 76) at 2-5. Pointing to deposition testimony of Vincent Siano, Senior Sales Director for Meyer, that monthly reports of landed costs were transmitted with a cover email, defendants contend plaintiff should have also produced such emails when responding to the document request. Plaintiff argues that the emails contain confidential information relating to many other products not relevant to this litigation which would be too burdensome to redact and that the email correspondence was not part of the original request. Plaintiff also states that it has already produced all documents concerning the landed costs of stainless steel kettles.
As I noted at the conference, the scope of discovery concerning plaintiff's damages has given rise to a number of disputes in this case. Plaintiff's counsel confirmed on the record at the conference that plaintiff was not seeking its lost profits and that the relief of "disgorgement of profits" sought in paragraph 26A of its Third Amended Complaint, refers to recovery of defendants' profits on the tea kettles at issue, not plaintiff's lost profits. Defendants argue that the email correspondence is important to understanding how Meyer determines wholesale pricing, but the price of plaintiff's products have no bearing on defendants' profits. Thus, defendants' request for the cover e-mails and other information regarding the landed costs reports is denied.
Notwithstanding this ruling, this Court agrees with defendants that the emails are responsive to their initial document request and should have been produced with the reports that plaintiff did produce. Inexplicably, Meyer's counsel represented at a hearing on October 12, 2011 that because "we don't keep documents that contain the information that defendant had requested," Meyer had generated reports from databases stored on computers to respond to defendants' discovery requests. Ct. doc. 76-8, Ex. H at 3. Clearly, the testimony of Mr. Siano establishes that there are documents that are kept. This Court had previously expressed skepticism with the extent of plaintiff's production; this dispute does little to allay the doubt even if it concerns discovery that is not relevant.
2. Defendants' Document Request 11
Defendants challenge the adequacy and nature of plaintiff's production in response to document request 11 of Defendants' First Demands. Defendants seek in this request "[a]ll documents which you contend constitute Meyer's notice to Alfay concerning Meyer's 'exclusive right to sell kettles made of stainless steel.'" Defendants contend that plaintiff's production has not been responsive and that its most recent production consisted of approximately 400 photos which fail to demonstrate that plaintiff gave notice to defendants. Plaintiff claims to the contrary that the documents it has provided, including the photographs, are responsive.
Defendants argue that because the photographs produced do not constitute notice to Alfay, plaintiff should be required to amend its supplemental response to state that there are no documents evidencing notice that plaintiff had given the defendants. This Court declines to address the evidentiary value of documents produced, since that is more appropriately addressed later in this case. However, if plaintiff has, in fact, produced all responsive documents, plaintiff is not entitled to present other documents in the future to support its allegation that it provided notice to defendants. Plaintiff is directed to respond and produce by August 17, 2012*fn2 any further documents in its control that respond to Document Request 11. Plaintiff will be precluded from using any documents other than those produced to establish the notice that it claimed it gave defendants. As discussed on the record, oral conversations and documents not in plaintiff's control will not be precluded by this ruling. However, plaintiff is reminded that "control" should be construed broadly and may extend to persons not within its corporate structure, including EVCO, which is represented by plaintiff's counsel in the dispute discussed below.
Defendants move to compel EVCO to provide an affidavit confirming that EVCO had produced all the documents in response to three subpoenas served on it. EVCO produced only 320 documents, including only three emails, which this Court agrees is a surprisingly small number. When EVCO claimed that it had produced all the responsive documents, defendants requested EVCO to explain in writing the search it undertook. Plaintiff's counsel, who is representing EVCO with respect to the issues raised in this motion, refused to do so.
Following the filing of defendants' motion to compel, plaintiff provided an affidavit from an EVCO executive explaining the circumstances of the searches it undertook in response to defendants' subpoenas. Pl's Opp'n to Mot. to Compel (ct. doc. 80) at 6, Ex. C. Acknowledging that their request for such an affidavit is therefore moot, defendants still seek sanctions. Because I find that an affidavit of this sort is not required by F.R.C.P. 45, plaintiff's initial refusal to produce the affidavit does not constitute failure to provide discovery as the term is used in Rule 37(a)(5).*fn3
Defendants' request for sanctions as is denied.
However, plaintiff's belated production of the affidavit again reflects, at best, plaintiff's failure to attempt to resolve the dispute in good faith, as evidence by the many motions previously filed by defendants which this Court has granted in large part. Plaintiff is warned that any future failure to cooperate and engage in a good faith attempt to resolve a discovery dispute will not be so readily excused.
Defendants contend that they are entitled to the costs of the depositions of four Meyer employees because plaintiff's counsel improperly raised a number of objections which interfered with questioning of Meyer's employees. These objections fall into three categories: speaking objections (for vagueness, ambiguity, calling for speculation, relevancy), oft-repeated objections to questions not within the scope of the topics listed in the Rule 30(b)(6) deposition notice and objections to questions about privileged matters. Defendants also seek to compel an answer to a question regarding the identities of the members of the plaintiff, a limited liability company.
After review of the transcripts provided to the Court, including additional excerpts that defense counsel provided at the hearing, I agree, for the most part, with defendants' contentions.
First, I find that certain objections made by Dean Dickie, plaintiff's counsel, during the course of depositions, particularly that of Vincent Siano, were suggestive and inappropriate. These include objections which included comments that questions called for speculation, were vague or were ambiguous. Examples of such improper objections may be found at Siano Depo. Tr. page 26, lines 5-7; 28, lines 17-18; 32 at lines 5-6; 33 at lines 7-8; 34 at lines 6-7; 35 at 5-6; 38 at 14-15; 45 at 3-4, 17-18; 47 at lines 7, 13-14, 22-23; 48 at 10-19; 51 at 23-24; 54 at 22-23; 65 at lines 16-17; 122 at line 21; 167 at lines 12-15; 169 at 6-7.
Mr. Dickie's conduct was improper because his objections were often not "limited to the statement 'objection as to form,' or other specific evidentiary basis." Ryan v. Paychex, Inc., 2009 WL 2883053 at *2 (D.Conn. Sept. 1, 2009). Moreover, "it is not counsel's place to interrupt if a question is perceived to be potentially unclear to the witness." Phillips v. Manufacturers Hanover Trust Co., 1994 WL 116078 at *3 (S.D.N.Y. Mar. 29, 1994). Rather "[t]he Federal Rules of Civil Procedure provide two mechanisms to correct or clarify deposition testimony, namely cross-examination and through submission to the witness for review." Cameron Indus., v. Mothers Work, Inc., 2007 WL 1649856 at *5 (S.D.N.Y. June 6, 2007).
Notwithstanding the many objections made in an improper fashion, I do not find that the disruption caused by these many improper objections warrant sanctions pursuant to Rule 30(d)(2) or 28 U.S.C. § 1927. Some of the objections were justified and "[t]he extent of counsel's objections is less pervasive than of counsel in other cases where the court imposed sanctions under section 1927." See Order dated Oct. 5, 2011 (ct. doc. 136) at 3-4, Applebaum v. Nat'l Westminster Bank, 07-CV-916 (E.D.N.Y.)*fn4 and cases discussed therein. Compare Morales v. Zondo, 204 F.R.D. 50, 54 (S.D.N.Y. 2001) (granting sanctions where counsel's "private consultations with the witness, instructions not to answer, instructions how to answer, colloquies, interrupts, and ad hominem attacks disrupted the examination . . . and protracted the length of the deposition") and Unique Concepts, Inc. v. Brown, 115 F.R.D. 292, 292-93 (S.D.N.Y. 1987) (granting sanctions where "it is hard to find a page on which [counsel] does not intrude on the examination with a speech, a question to the examiner, or an attempt to engage in colloquy distracting to the examiner" and "constant interruptions . . . silencing of the witness and obstructive demands for explanations from the examiner rendered the deposition worthless and an exercise in futility") with Sicurelli v. Jeneric/Pentron, Inc., 2005 WL 351701 at *7 (E.D.N.Y. Dec. 30, 2005) (declining to impose sanctions where "counsel's interference . . . did significantly frustrate the progress of and [examiner]'s ability to complete the depositions" but "counsel's conduct . . . was not so completely without merit as to require the conclusion that the conduct was undertaken to harass or delay or for some improper purpose") and Phillips, 1994 WL 116078 at *4 (declining to award sanctions where, although "[t]he sheer volume of unwarranted objections was such that it interfered substantially with [examiner]'s ability to obtain information from [deponent]" and counsel's "conduct did indeed verge on frustrating the fair examination of [deponent]," examining counsel "was not prevented from completing the deposition").
However, Mr. Dickie and any other attorney for plaintiff who may conduct a deposition in this matter are warned that they must refrain, when making an objection, from stating that a question is vague, ambiguous or calls for speculation. Counsel should simply state, "Objection as to form." Similarly, objections as to foundation should be simply stated as such: "Objection, foundation." There should not be any comment that a question is speculative. Elaboration is permitted only where examining counsel requests the basis of the objection.
Remarkably, this ruling is similar to the ruling made by Magistrate Judge Michael Dolinger in addressing the conduct of Mr. Dickie during depositions in a related litigation in which Mr. Dickie also represented Meyer -- Farberware Licensing Co. v. Meyer Marking Co., 09-CV-2570 (HB)(MHD) (the "Related Litigation"). See id., Conf. Tr. dated July 8, 2009 at 10-11 (attached to ct. doc. 76 as Ex. V). Judge Dolinger chastised Mr. Dickie on the record for making speaking objections and directed that he simply say "Objection as to form." Continued similar behavior in this case will not be tolerated in the future.
Defendants also argue this Court should follow Judge Dolinger's ruling*fn5 and direct plaintiff to answer the question posed to Dean Krause, Meyer's Senior Vice President and General Counsel, regarding the identities of members of the Meyer International Holdings Limited Board of Directors. See Krause Depo. Tr. at 101-103. Plaintiff objected on grounds of relevance. This Court agrees, since disclosure of the identities of members of a private limited liability corporation will not yield information regarding the persons in the corporation involved in the transactions at issue. In contrast, the corporate relationships among the Meyer entities that Judge Dolinger required to be disclosed in the Related Litigation pertain to basic information regarding the corporate structure of Meyer.
Next, defendants complain that Mr. Dickie repeatedly raised the objection that questions posed to a Rule 30(b)(6) witness depositions were beyond the scope of the deposition notice. I expressly ruled at a conference on March 24, 2012 that defendants would be permitted to question plaintiff's Rule 30(b)(6) witnesses following a dispute that arose over the location of the depositions. See Minute Entry dated 3/24/12. This ruling was intended to facilitate the flow of information and potentially minimize the number of depositions required. A person with knowledge, even if not testifying in a corporate capacity, may provide useful information that is admissible.
As this Court has previously observed, "[w]hen a deponent is produced pursuant to Fed.R.Civ.P. 30(b)(6), the scope of questioning at the deposition is not defined by the notice of deposition -- instead, Fed.R.Civ.P. 26(1) defines the scope of discovery unless otherwise ordered by the court." Employers Ins. Co. v. Nationwide Mut. Fire Ins. Co., 2006 WL 1120632 at *1 (E.D.N.Y. Apr. 26, 2006) (citing Charles Alan Wright & Arthur R. Miller, 8A Federal Practice and Procedure § 2103 (2d ed. 1994 & Supp. 2005)). The topics designated in a notice of deposition "cannot be used to limit what is asked of the designated witness, but rather, it constitutes the minimum, not the maximum, about what a deponent must be prepared to speak." Id. (internal citations omitted).
Although plaintiff is permitted to object to a question as beyond the scope of the notice in order to preserve for the record that the deponent is answering such a question in an individual, not corporate, capacity, many of Mr. Dickie's objections in this regard were excessively wordy. See Siano Depo. Tr. 33 at lines 9-17, 22-25; 34 at 1-5, 9-22; 36 at 2-10; 44 at 6-10; 49 at 22-25; 169 at 23-25; 194 at 9-16. In the future, Mr. Dickie must state his objections to scope simply by stating "Objection, beyond the scope of the deposition notice."
Defendants also contend that Mr. Dickie improperly objected on grounds of attorney-client privilege. After reviewing the transcript, I find that plaintiff sometimes prematurely raised privilege objections in response to questions that did not clearly call for privileged information, particularly whether certain discussions had taken place. For example, Mr. Dickie objected prematurely to questions requiring a simple yes or no response at: Siano Depo. Tr. at 121, lines 12-19; Krause Depo. Tr. at 22, lines 17-18 cont'd at 23 lines 7-17; 139 at lines 22-25, cont'd at 140, 141. Questions to establish whether a discussion took place are permissible. See Brewer v. Hall, 2005 WL 2219304 at *3, fn. 1 (E.D.N.Y. Sept. 12, 2005) ("To the extent defendants objected to questions concerning whether Staller provided documents to the Village Attorney, these objections are overruled because they do not ask for the substances of the attorney-client communication"). To be sure, although "counsel may inquire whether the witness had spoken with [opposing counsel] about the action before the deposition, he cannot obtain ...