United States District Court, S.D. New York
BERNARD W. GOONEWARDENA, Plaintiff,
STATE OF NEW YORK WORKERS COMPENSATION BOARD and WINSTON FARNUM, Supervisor, Defendants.
OPINION & ORDER
RONNIE ABRAMS, District Judge.
Pursuant to Federal Rule of Civil Procedure Rule 72(a), Plaintiff in this employment discrimination action moves to set aside Magistrate Judge Pitman's order of December 10, 2014 denying his request to compel the deposition of Defendant Farnum. See Dkt. 96. For the reasons that follow, Plaintiff's motion is denied.
Rule 72(a) provides that in considering objections to a magistrate judge's order on a nondispositive matter, the Court shall "modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." "Matters concerning discovery generally are considered nondispositive' of the litigation." Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). "A finding is clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Gypsum Co., 333 U.S. 364, 395 (1948).
As a consequence of this "highly deferential standard of review, magistrate judges are afforded broad discretion in resolving non-dispositive disputes and reversal is appropriate only if their discretion is abused." Am. Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 90 (S.D.N.Y. 2002). Indeed, "that reasonable minds may differ on the wisdom of [a particular ruling] is not sufficient to overturn a magistrate judge's decision." Anwar v. Fairfield Greenwich Ltd., 982 F.Supp.2d 260, 263 (S.D.N.Y. 2013) (alteration and citation omitted). After considering the challenged order, the parties' submissions,  and the record in this case in light of the governing standard of review, the Court is satisfied that there was no abuse of discretion or clear error in Judge Pitman's decision declining to compel Defendant Farnum's deposition.
The issue of Plaintiffs depositions-and Defendant Farnum's deposition in particular- has been a prominent feature in the protracted history of this litigation. For present purposes, however, only some of that extensive background is necessary. Defendant Farnum's deposition appears to have first been mentioned at a conference held on February 23, 2012 to set a discovery schedule. At the conference, Judge Pitman carefully explained the discovery process to Plaintiff, who is proceeding pro se,  and answered multiple questions posed by Plaintiff. See 02/23/2012 Tr. 5-22. In the course of that colloquy, the question of depositions arose and Plaintiff was informed that he may wish to depose Defendant Farnum and he acknowledged as much:
THE COURT: Maybe the first thing to do is to depose Mr. Farnum then and find out what he remembers, okay?
MR. GOONEWARDENA: Okay, first depose him, yeah.
02/23/2012 Tr. 21. Judge Pitman also explained Plaintiff's obligation to serve a notice on Defendants' counsel if he sought to depose Defendant Farnum or others:
THE COURT: And if you want to take a deposition, what you should do is send a written, you can do it in the form of a letter or a written notice to [Defendants' counsel] Mr. Siudzinski telling him who you want to depose and when you would like to depose them.
02/23/2012 Tr. 11-12. Indeed, Judge Pitman took the time to take Plaintiff through an example of how he might schedule a deposition:
THE COURT:... [L]et's just pick a date out of the air, and this is the way it works in litigation, let's say you wanted to depose a witness on May 15, you want to depose John Doe on May 15, Mr. Siudzinski would call John Doe, find out if John Doe is available on May 15, find out if Mr. Siudzinski's available on May 15. Maybe John Doe has an important meeting on May 15, maybe John Doe has a scheduled vacation on May 15-
MR. GOONEWARDENA: I understand.
THE COURT: What should happen in that situation is Mr. Siudzinski should call you back and say John Doe is not available on May 15, but he's available on May 17, or he's available on May 13, you know, and ordinarily the parties negotiate and come to a date that's mutually convenient. Okay, and ...