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Nonie Pegoraro v. Ernesto Marrero

November 28, 2012

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

By a memorandum and order, dated May 29, 2012, the Court denied the movants'*fn1 motion for a protective order and to quash subpoenas seeking the depositions of defendant Alan Aviles and non-parties Lisa Lee and Louis Panarella and directed the plaintiff to file a motion for reasonable expenses incurred in opposing the movants' motion, as provided by Rule 37(a)(5)(B) of the Federal Rules of Civil Procedure. On September 4, 2012, the assigned district judge overruled the defendants' objections to the May 29, 2012 order, noting that "[i]t is not clear whether the Defendants have been given an opportunity to be heard in opposing this award of sanctions," and the Court did not "assess whether Defendants' motion was 'substantially justified' or explain whether an award of expenses would be 'otherwise unjust.'" The assigned district judge's September 4, 2012 order concluded that "Defendants should be given an opportunity to explain why an award of expenses would not be appropriate." On September 20, 2012, the Court directed the: (1) movants to serve and file a writing explaining why an award of the expenses incurred by the plaintiff in opposing the movants' motion would not be appropriate, pursuant to Rule 37(a)(5); (2) plaintiff to serve and file any response; and (3) movants to serve and file any reply. The parties filed their respective writings.

Movants' Contentions

The movants contend, making citation to Rule 37(a)(5)(A)*fn2 of the Federal Rules of Civil Procedure, that "sanctions are not warranted because the movants attempted to resolve the depositions of President Alan Aviles and non-parties Lisa Lee and Louis Panarella prior to moving for a protective order." In support of this contention, the movants submitted e-mail messages, dated March 9 and June 9, 2011. The March 9, 2011 e-mail message is from the plaintiff's attorney to the movants' attorney, stating:

The first two depositions are scheduled for March 18, 2011. You indicated you might object to some of the witness[es]. I sent emails to you regarding our reasons for calling the deponents you express concern about but you did not respond. I am about to schedule a court reporter. Let me know if you object to any of the deponents so I can request judicial intervention.

The June 9, 2011 e-mail message is from the movants' attorney to the plaintiff's attorney, providing the movants' attorney's availability in June and July 2011, stating, in pertinent part, "I will check the witnesses for their availability and let you know the dates the witnesses can appear." According to the movants, "[p]rior to moving for a protective order, defendants also requested a pre-motion conference, in a letter dated April 19, 2012, in the event the discovery dispute can be resolved without motion practice," which the Court denied, directing the movants to make their motion by April 24, 2012.

The movants contend "there is no evidence of any bad faith to warrant a discovery sanction" because [t]he objections to producing President Aviles, Deputy Inspector General Lisa Lee, and Supervising Confidential Investigator Louis Panarella for deposition was not in contravention of a Court order, but grounded in good faith objections and prior cases precluding the depositions of high-level officials and the disclosure of information which violates the law enforcement privilege.

Furthermore, the movants contend, sanctions should not be imposed because they "were unfairly surprised by the sanctions," and they "were never advised prior to moving for a protective order that sanctions could be imposed." The movants maintain that they were not informed, either in response to defendants' April 19, 2012 request for a pre-motion conference, or during the April 4, 2012 Court conference where the Court was informed that defendants may move for a protective order and permitted plaintiff "to attempt to examine orally Alan Aviles, Dr. Ramanathan Raju, Lisa Lee, and Louis Panarella." . . . Thus, the imposition of sanctions was without prior warnings.

The movants contend: The imposition of sanctions is also surprising considering the prior unsuccessful discovery motions made by plaintiff where defendants were never awarded attorneys' fees for successfully opposing such motions. For example, on August 25, 2011, after defendants submitted their opposition to plaintiff's motion, the Court denied plaintiff's motion to compel for failing to comply with Local Civil Rule 7.1. . . . After having the benefit of reviewing defendants' opposition, plaintiff then submitted a revised motion to compel on September 1, 2011 that contained newfound arguments that mooted, in part, defendants' opposition. Defendants thus expended unnecessary time and resources drafting opposition to arguments contained in plaintiff's first motion to compel that were not contained in her second motion to compel of September 1, 2011. . . . Defendants, however, were not awarded their attorneys' fees despite the denial of plaintiff's first motion to compel in its entirety.

Similarly, the "[d]efendants were also not awarded their attorneys' fees after plaintiff's substantially unsuccessful September 1, 2011 second motion to compel." The movants maintain that "[f]undamental fairness should dictate that parallel actions create parallel results and plaintiff should not be awarded attorneys' fees for opposing defendants' and non-parties' motion for a protective order."

Plaintiff's Contentions

The plaintiff contends that sanctions are warranted because the "defendants have failed to produce Alan Aviles, Lisa Lee and Louis Panarella on more than one occasion in this case, and most recently on June 29, 2012 and May 16, 2012, as required by the April 6, 2012 Order and subsequent Order." According to the plaintiff, "[t]he Defendants are disingenuous in stating that they attempted to resolve the depositions of Aviles, Lee and Panarella," and their "email communications from June 2011 . . . are irrelevant to the sanctions imposed on them." The plaintiff contends that the sanctions were imposed on the defendants based on their refusal to comply with court ordered depositions, filing of needless discovery motions, and other actions that occurred after June 2011. The Defendants['] continued refusal to produce these witnesses demonstrates that they never intended to resolve this situation nor was their failure to appear for the scheduled depositions in good faith. The Defendants did not argue any new point but simply recycled the arguments rejected by the Court in their previous submissions.

The plaintiff invokes Rule 37(d)*fn3 of the Federal Rules of Civil Procedure, contending that sanctions are warranted because the defendants "failed to produce Defendants and necessary witnesses for depositions for almost two (2) years," and the sanctions were "both appropriate and necessary, since the Defendants failed to comply with the Court's reasonable Order." Furthermore, the movants' argument that they were surprised by the sanctions is meritless because the "record is littered with notices to the defendants of their failure to comply with court discovery orders and rules," as well as their inappropriate behavior, including that they "did not show up for the last three depositions scheduled pursuant to this court's order forcing Plaintiff to incur unnecessary deposition costs for the first day on June 29, 2012," involving a court ...


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