KTHL LAW OFFICES, P.C., Jaromir Kovarik, Esq., Lebanon, PA, Attorneys for Plaintiff.
GARBARINI & SCHER, P.C., Gregg D. Weinstock, Esq., New York, NY, Attorne for Defendants.
ROBERT W. SWEET, District Judge.
There are several motions currently pending in this action between Plaintiff Vladimira Koch a/k/a Vladka Koch ("Ms. Koch" or the "Plaintiff") and Defendants Vratislav Pechota, Jr., Esq. ("Pechota" or the "Defendant") and his firm, the Law Office of Vratislav Pechota, Jr., Esq. (collectively, the "Defendants). This case has a long history, and the record is replete with the difficulties presented. As set forth below, this opinion resolves all outstanding motions by the parties and the non-party witnesses prior to the scheduled trial date of November 18, 2013.
The facts underlying this action were previously set forth in a number of opinions by this Court. See e.g. Koch v. Pechota, No. 10 Civ. 9152, 2013 WL 3892827 (S.D.N.Y. July 25, 2013); Koch v. Pechota, No. 10 Civ. 9152, 2012 WL 2402577 (S.D.N.Y. June 26, 2012); Koch v. Pechota, No. 10 Civ. 9152, 2012 WL 4876784 (S.D.N.Y. Oct. 12, 2012) (the "October 11 Opinion"); Dkt. No. 177 (Opinion, dated June 22, 2012) (the "June 22 Opinion"); Dkt. No. 190 (Opinion, dated October 11, 2012). Familiarity with the general background of this case and prior decisions is assumed.
Upon the conclusions and facts set forth below: (1) the motions of the third-party witnesses are granted and the pending subpoenas and notices are quashed; (2) Plaintiff's motion for continuance is denied; (3) Plaintiff's motion to admit Ms. Koch's former testimony is denied; and (4) Plaintiff's motion for proposed jury instructions is denied.
I. The Non-Party Witnesses' Motions to Quash Are Granted
Non-party witnesses Loriann Vita, Esq. ("Vita") and Raymond Ragues, Esq. ("Ragues"), who were involved in the separate state litigation brought by the Plaintiff in the Supreme Court of the State of New York (the "State Court Action") involving her divorce proceedings, have moved to quash subpoenas served upon them pursuant to Rule 45 of the Federal Rules of Civil Procedure.
Rule 45 of the Federal Rules of Civil Procedure requires that "[a] party issuing a subpoena to a non-party for the production of documents during discovery must provide prior notice to all parties to the litigation." Fed.R.Civ.P. 45(b)(1); Schweizer v. Mulvehill, 93 F.Supp.2d 376, 411 (S.D.N.Y. 2000). The rule also mandates that an attorney issuing a subpoena "must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." Fed.R.Civ.P. 45(c) (1). If the subpoena imposes an undue burden or expense, the issuing Court is empowered to quash the subpoena. Fed.R.Civ.P. 45(2)(c) (3)(iv). "Motions to compel and motions to quash a subpoena are both entrusted to the sound discretion of the court.'" In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (quoting United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000)).
Whether a subpoena imposes an undue burden "depends on such factors as relevance, the need of the party for the documents, the breadth of the document, the time period covered by it, the particularity with which the documents are described and the burden imposed." Night Hawk Ltd. v. Briarpatch Ltd., L.P., No. 03-1382(RWS), 2003 WL 23018833, at *8 (S.D.N.Y. Dec. 23, 2003) (citations and quotations omitted). "The party issuing the subpoena must demonstrate that the information sought is relevant and material to the allegations and claims at issue in the proceedings." Id. Additionally, "the status of a witness as a non-party to the underlying litigation entitles [the witness] to consideration regarding expense and inconvenience." Id. ; see also Watts v. SEC, 482 F.3d 501, 509 (D.C. Cir. 2007) (stating that the "undue burden' standard requires district courts supervising discovery to be generally sensitive to the costs imposed on third parties.").
On July 2, 2013, Jaromir Kovarik ("Kovarik"), counsel for the Plaintiff, deposed Vita in a separate New York state legal malpractice action brought by Plaintiff against three law firms involved in her underlying divorce action. Vita operates a per diem legal services firm, where she makes court appearances on behalf of attorneys of record who require coverage at court status conferences. Vita was retained by Ragues and Min, Esqs., the attorneys of record in Ms. Koch's divorce action, for three status conferences in Westchester County. Vita was unable to attend any of these conferences, and assigned one of her affiliated attorneys to cover them. As testified to at her deposition, Vita has not met or conversed with any of the relevant parties in the instant litigation and has no personal knowledge relevant to either of Plaintiff's actions.
Plaintiff has not met her burden to show how the information sought by Vita is relevant and material to the allegation and claims at issue in this proceeding. The Plaintiff has contented that the fact Vita has not met any of the parties is all the more reason for Vita to testify concerning the parties who represented Plaintiff in the underlying action and in the Westchester County divorce proceeding. (Plaintiff Opposition to Vita at 3.) However, Vita has already been deposed as to this issue, and in addition to never meeting any of the relevant parties, has testified under oath that she has no relevant knowledge to any issue pertaining to either of Plaintiff's actions. There is no legitimate purpose served by offering Vita as a witness at trial. For the reasons stated above, the subpoena is quashed as to Vita. Upon a showing of relevance her deposition may be introduced.
Ragues is a defendant in Ms. Koch's separate state court action, Koch v. Sheresky, Aronson, et al., in the New York Supreme Court. (Dkt. No. 112337/07, filed on November 23, 2011). The State Court Action alleges negligence by Ragues in his representation of Ms. Koch during her matrimonial action.
On September 9, 2013 (Dkt. No. 380), Kovarik sought to compel Ragues to appear and testify at the trial in this action that then was scheduled for September 23, 2013. That same day, Ragues submitted a declaration in opposition (Dkt. No. 389), explaining that he was not retained by Ms. Koch to provide any immigration advice, but solely as her matrimonial counsel in late 2004 until being terminated in September 2005. (Ragues Transcript, "Ragues Tr."; 681-87, 735-36, 817-31, 915-16, 1083-88.) Ragues has already been questioned extensively concerning Ms. Koch's immigration issues and her immigration lawyer, Mr. Pechota. ( Id. ) Ragues has had no direct contact with Pechota, is unaware of any information relating to Ms. Koch's immigration matters, and had no documents responsive to the request for such documents. On September 13, 2013, this matter was raised orally at a conference and Plaintiff's request to compel Ragues testimony was denied. (Dkt. No. 405.) Ragues has no knowledge concerning the issues in this case and has already been thoroughly questioned as to that effect. Plaintiff has failed to provide any basis or evidence ...