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Palmer v. Penfield Central School District

United States District Court, W.D. New York

March 10, 2015

KAREN PALMER, Plaintiff,
v.
PENFIELD CENTRAL SCHOOL DISTRICT, et al., Defendants.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

Currently pending before this Court are two discovery motions filed by defendant Penfield Central School District, both are which were allegedly prompted by plaintiff's purported obstinate, harassing and improper conduct during her deposition. (Docket ## 47, 53). The first seeks a protective order directing that all future depositions be conducted in the United States Courthouse before a court reporter employed by the United States Courts, directing service of a subpoena on the court reporters who were present at plaintiff's deposition "to discuss events in camera to permit the Court to evaluate the parties' deposition conduct, " and for various other forms of relief. (Docket # 47). Defendant's second motion seeks an order requiring plaintiff to submit to a continued deposition and to pay all costs incurred by defendant associated with the continued deposition and the motion. (Docket # 53-1). Plaintiff opposes both motions. (Docket ## 51, 56).

Defendant claims that plaintiff abruptly and unjustly terminated her deposition well before the expiration of the seven hours permitted by Rule 30(d)(1) of the Federal Rules of Civil Procedure. (Docket ## 50 at ¶¶ 30-35; 53-1). Plaintiff counters that counsel for the defendant had agreed in advance to limit the duration of the deposition to no more than four to five hours and that it was defendant's counsel who terminated the deposition. (Docket # 51 at ¶¶ 14, 26). According to defendant's counsel, the record plainly belies plaintiff's claim of an agreement to limit the duration of her deposition, and plaintiff's claim to the contrary is further evidence of her bad faith conduct during discovery. (Docket ## 50 at ¶ 7; 53-1 at ¶¶ 4-8).

Nothing in the record before the Court supports plaintiff's contention that the parties reached an agreement to limit the duration of her deposition. Indeed, the specific evidence that plaintiff cites refutes plaintiff's contention. First, she cites a letter that counsel for defendant sent her confirming the scheduled deposition. That letter explicitly states that plaintiff's deposition would begin at 10:00 a.m. and that plaintiff should "[p]lan to be there until around 4 or 5 with a break for lunch." (Docket # 51-1, Exhibit ("Ex.") E). Second, plaintiff references another letter, but this one pertains to the scheduling of depositions by plaintiff of defense witnesses and indicates that each "may require 4-5 hours in duration." (Docket # 51-1, Ex. M). It does not address the subject of plaintiff's deposition. Finally, plaintiff cites the following exchange with defendant's counsel at the conclusion of the deposition:

Q. Okay. So when did you receive this document?
A. I'm just going to check the time because we have - nearing the exhaustion of this deposition. I want to put that on record, it's quarter to four, 3:45.
Q. That's fine. And I'm entitled to depose you for seven hours. And I have the right to do so. We've taken a lot of breaks -
A. They were very short breaks.
Q. That's fine.
A. I want it on record they were short breaks.
Q. That's fine.
A. And also you asked me to set aside four to five hours. That was our agreement.
Q. That's what I said I would ...

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