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Gavrity v. City of New York

United States District Court, E.D. New York

September 19, 2014

VINCENZO GAVRITY, Plaintiff,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER JOSE TABORA, LIEUTENANT RICHARD PERULLO, SERGEANT JOSEPH DURANTE, POLICE OFFICER DAVID FIGUEROA, POLICE OFFICER TIMOTHY NEISS, POLICE OFFICER JAN FOLVARSKY, and JOHN DOE Defendants.

MEMORANDUM AND ORDER

VERA M. SCANLON, Magistrate Judge.

Plaintiff Vincenzo Gavrity ("Plaintiff") brings this action against Defendants City of New York, the New York City Police Department, Lieutenant Richard Perullo, Sergeant Joseph Durante, Police Officer Jose Tabora, Police Officer David Figueroa, Police Officer Timothy Neiss and Police Officer Jan Folvarsky ("Defendants") under 42 U.S.C. ยง 1983, alleging, inter alia, that Defendants falsely arrested Plaintiff, used excessive force and deprived Plaintiff of adequate medical care relating to injuries he suffered during the arrest. Docket No. 26.

Before the Court is Plaintiff's motion asking that Defendants' counsel Arthur Larkin and Melissa Wachs be sanctioned for alleged misconduct during the deposition of Defendant Durante, and that Mr. Larkin and Ms. Wachs be ordered to pay the attorneys' fees and costs that Plaintiff incurred as a result. Docket Nos. 37, 41. Defendants opposed and cross-moved for sanctions of their own, also for alleged deposition misconduct on the part of Plaintiff's counsel Elizabeth Wolstein. Docket No. 40. In addition to costs and fees, both Parties seek other relief as the Court deems necessary. Docket Nos. 37, 40-41.

In this Memorandum and Order, I describe and discuss the alleged misconduct that occurred during Defendant Durante's deposition. For the following reasons, I grant in part and deny in part Plaintiff's motion and deny Defendants' motion.[1]

I. The Videotape Incident

On January 6, 2014, Ms. Wolstein began her deposition of Defendant Durante at 9:40 a.m. Docket No. 37. Ms. Wachs was present to defend the deposition. Id. At some point that morning, Ms. Wolstein stated her intention to show Defendant Durante videotapes containing footage relevant to the alleged incident, which Plaintiff had produced in discovery many months earlier. Id. Ms. Wachs contacted Mr. Larkin, one of her supervisors in the New York City Law Department, to alert him to the impending videotape screening because Ms. Wachs was concerned that Defendant Durante had never been shown the videotapes during deposition preparation. Id. Mr. Larkin, who had not made an appearance in the action prior to that day, came to the deposition at 11:55 a.m., and both Mr. Larkin and Ms. Wachs challenged Ms. Wolstein's showing of the video to Defendant Durante. Id.; Docket No. 36 (Mr. Larkin's 1/6/2014 notice of appearance).

Mr. Larkin's conduct was improper. Only one attorney may lodge objections during a deposition. See, e.g., U.S. v. Frayer, 9 F.3d 1367, 1374 (8th Cir. 1993) (affirming the district court's ruling that the defense attorneys should not "double team" a witness with respect to objections, that only one co-defendant's counsel could lodge objections during a crossexamination, and that other counsel who wished to lodge an objection should confer with the attorney designated to defend during cross-examination); Fed.R.Civ.P. 30(c) ("The examination and cross-examination of a deponent proceed as they would at trial...."). Here, Ms. Wachs was the attorney defending Defendant Durante's deposition, and Mr. Larkin should not have joined the discussion on the record. Yet he did, with the following exchange:

MR. LARKIN:
We understand that there may be a video of this incident. And if there is, I'd like to see it now, if you have it, before we continue the questioning of the officer.
MS. WOLSTEIN:
You have the video.
MS. WACHS:
I don't have the video.
MS. WOLSTEIN:
I produced the video to you.
MS. WACHS:
Seriously, I've never seen a video of this.
MR. ROSENFELD:
We produced it in the e-mail to you. I can bring you the email.
MR. LARKIN:
We're not going to continue the deposition until we see the video and make a decision as to whether we need to stop the deposition and continue on another day, at a point in time, when we've had a chance to look at the [video].

Docket No. 37, Exh. A.

Ms. Wolstein showed Mr. Larkin and Ms. Wachs the May 15, 2013 e-mail confirming that Plaintiff had timely produced the videotapes, and Ms. Wachs agreed that the e-mail demonstrated that Defendants had received the videotapes. Docket No. 37. Mr. Larkin and Ms. Wachs nonetheless stopped the deposition and ushered Defendant Durante to a conference room in order to review the videotapes with him before the deposition continued. Id. The deposition resumed at 12:14 p.m. Id. All told, the video-viewing interruption of the deposition lasted nineteen minutes. Id.[2]

The matter does not require much further discussion, as Defendants' counsel concede that they were to blame for the videotape incident because they "bore the responsibility of showing [the videotapes] to [Defendant Durante] prior to the deposition, " and furthermore, they "should have... attempted to resolve the matter with [P]laintiff's counsel in good faith" or "called the court and asked for a ruling." Docket No. 40. I agree with Defendants that they should have handled the videotape issue differently.

Although Ms. Wolstein alleges that the way Mr. Larkin and Ms. Wachs conferred with Defendant Durante interrupted the deposition, she does not discuss whether the conference would have been permissible at a different moment of the day, for example, during lunch or a break. Docket Nos. 37, 40, 41. Assuming, arguendo, that Ms. Wolstein would have objected to a lunchtime discussion between Mr. Larkin, Ms. Wachs and Defendant Durante about the videotapes, she did not have a question about the videotape pending during that break so no sanctions relief is necessary. The rules of this Court do not prohibit "discussions between counsel and client during a deposition other than when a question is pending, " Few v. Yellowpages.com, LLC, No. 13 Civ. 4107 (RA) (MHD), 2014 WL 3507366, at *1 (S.D.N.Y. July 14, 2014), although "[a]ttorney-client conferences should be kept to a minimum, " Abu Dhabi Commercial Bank v. Morgan Stanley & Co., No. 08 Civ. 7508 (SAS), 2011 WL 4526141, at *8 (S.D.N.Y. Sept. 21, 2011), adopted by 2011 WL 4526137 (S.D.N.Y. Sept. 29, 2011). See Local Civ. Rule 30.4 ("An attorney for a deponent shall not initiate a private conference with the deponent while a deposition question is pending, except for the purpose of determining whether a privilege should be asserted."); Local Civ. Rule 30.4, Committee Note (stating that the while-aquestion-is-pending rule is a "minimum standard" which does not mean that "other types of obstructive conduct during depositions may not be dealt with by appropriate orders of the Court"); but see Musto v. Transport Workers Union of Am., AFL-CIO, No. 3 Civ. 2325 (DGT) (RML), 2009 WL 116960, at *2 (E.D.N.Y. Jan. 16, 2009) (noting that Local Civil Rule 30.4's precursor more broadly stated that "[a]n attorney for a deponent [was not permitted to] initiate a private conference with ...


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