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Thompson v. Spota

United States District Court, E.D. New York

March 27, 2017

AVEMARIA THOMPSON, Plaintiff,
v.
THOMAS J. SPOTA, ROBERT EWALD, and SUFFOLK COUNTY, Defendants.

          ORDER

          A. KATHLEEN TOMLINSON, Magistrate Judge

         I. Relevant

         Background[1]

         Plaintiff AveMaria Thompson (“Thompson”) brings the instant action against Suffolk County District Attorney Thomas J. Spota (“DA Spota” or the “DA”), Chief of the Narcotics Bureau Robert Ewald (“Chief Ewald” or “Ewald”) and Suffolk County (the “County”) (collectively, “the Defendants”) alleging claims of race discrimination and retaliation arising under 42 U.S.C. § 1983. See generally Complaint (“Compl.”) [DE 1]. Previously, Plaintiff was granted leave to file an Amended Complaint. See generally Amended Complaint. (“Am. Compl.”) [DE 46]. Specifically, the Amended Complaint: (1) adds Suffolk County as a defendant; (2) adds claims for race discrimination and unlawful retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1983; and (3) withdraws all claims asserted against ADA Wagner. Before the Court at this time is Plaintiff's motion to re-open the depositions of DA Spota, Chief Ewald and non-party Chief Assistant District Attorney Emily Constant (“ADA Constant” or “Constant”). See DE 67. Defendants oppose the motion. DE 68. For the reasons that follow, Plaintiff's motion is DENIED.

         II. Motion to Re-open Depositions

         A. The Parties' Contentions

         Plaintiff brings the instant motion ostensibly in response to additional document discovery that was produced by Defendants in accordance with this Court's April 27, 2016 Order. See DE 65 (granting, in part, and denying, in part, Plaintiff's April 21, 2016 motion for discovery [DE 63]). The supplemental submissions include “evaluations and a termination notice related to Roshika [sic] Hettiarchchi [sic] . . . and notes related to employment issues involving two white ADAs, Meg Farrell and Susan Onorato.” DE 67 at 1. In addition, “Defendants also identified a single African American candidate for an ADA position who was offered, but turned down, the position.” Id. With respect to these submissions, Plaintiff contends that the depositions of DA Spota, Chief Ewald and ADA Constant - conducted in December 2015 - should be reopened in order to “further explore the decision-making process with respect to [Meg] Farrell (“Farrell”) and [Susan] Onorato (“Onorato”), the involvement and knowledge of Spota, who made the decision to terminate Plaintiff, concerning Farrell and Onorato, and explanations for the disparities in the way Plaintiff and [Rasheka] Hettiarchchi [sic] (“Hettiarachchi”) were treated as compared to the [sic] Farrell and Onorato.” DE 67 at 2; see DE 67, Exhibit (“Ex.”) A (excerpts of deposition testimony) (alterations added). Specifically, Plaintiff argues that “[t]he documents related to Ms. Farrell and Ms. Onorato show a striking inconsistency between the way Defendants handled the situations of Plaintiff and Ms. Hettiarchchi on the one hand and Ms. Farrell and Ms. Onorato on the other.” DE 67 at 1.

         In opposition, Defendants assert that “Plaintiff has had a full and fair opportunity to discover information about Ms. Hettiarachchi, Ms. Farrell and Ms. Onorato [since] Plaintiff was aware of all three ADAs long before the deposition of Spota, Ewald and Constant.” DE 68 at 2. In particular, Defendants state that Plaintiff was aware of Ms. Hettiarachchi as early as the filing of the initial Complaint since that pleading directly refers to “the termination of a ‘dark skinned female of South Asian national origin, ' which is a clear reference to Ms. Hettiarachchi.” Id. (quoting Comp. ¶ 9); see also Am. Compl. ¶ 9 (stating that “the NYSDHR based its finding [of probable cause that the Suffolk County DA's Office had discriminated and retaliated against Plaintiff], among other things, on [the] fact that the Suffolk DA only terminated one other ADA in 2013 - a dark skinned female of South Asian national origin”). In addition, “Plaintiff [ ] did not seek to discover information regarding Ms. Hettiarachchi in her initial discovery requests.” DE 68 at 2. With respect to Onorato and Farrell, Defendants state that although Plaintiff alleged that (1) “‘ADAs who engaged in far more serious misbehavior [then Plaintiff] . . . are not terminated'” and that (2) “Plaintiff's counsel confirmed that the plaintiff is aware of specific [ADAs] who purportedly engaged in conduct more egregious than the Plaintiff and who were not disciplined at all or not disciplined as severely, ” “Plaintiff's counsel did not identify any such individuals or otherwise pursue discovery of such individuals before the Spota, Ewald and Constant depositions.” Id.

         Further, during the Spota, Ewald and Constant depositions, “Plaintiff's counsel revealed that Ms. Farrell and Ms. Onorato were two of the individuals who purportedly received favorable treatment [and that] [d]espite ample opportunity to thoroughly question the witnesses about the treatment and discipline of Ms. Hettiarachchi, Ms. Farrell and Ms. Onorato, Plaintiff's counsel asked basic questions and chose not to ask additional questions.” Id. As such, Defendants argue that “the documents produced in response to [this Court's] April 27, 2016 Order did not reveal any new information. Instead, they contained information that was consistent with the testimony of Mr. Spota, Mr. Ewald and Ms. Constant.” Id. at 2-3.

         B. Discussion

         1. Applicable Law

         “A person who has previously been deposed in a matter may be deposed again, but only with leave of the court.” Sentry Ins. v. Brand Mgmt. Inc., No. 10 Civ. 347, 2012 WL 3288178, at *8 (E.D.N.Y. Aug. 10, 2012) (citing Fed.R.Civ.P. 30(a)(2)(A)(ii)); see Dash v. Seagate Tech. (US) Holdings, Inc., No. 13-6329, at *6 (E.D.N.Y. July 14, 2015). “Leave should be granted to the extent that doing so is consistent with the factors set forth in Rule 26(b)(2), such as ‘whether the second deposition of the witness would be unnecessarily cumulative, whether the party requesting the deposition has had other opportunities to obtain the same information, and whether the burden of a second deposition outweighs its potential benefit.'”[2] Sentry Ins., 2012 WL 3288178, at *8 (quoting Ganci v. U.S. Limousine, Ltd., No. 10-3027, 2011 WL 4407461, at *2 E.D.N.Y. Sept. 21, 2011)) (collecting cases). “Courts will typically re-open a deposition where there is new information on which a witness should be questioned.” Id. (quoting Ganci, 2011 WL 4407461, at *2); see, e.g, Vincent v. Mortman, No. 04 Civ. 491, 2006 WL 726680, at *1-2 (D. Conn. Mar. 17, 2006) (allowing plaintiff to re-open deposition when one witness' deposition contradicted defendants' deposition and medical records); Chang v. Safe Horizons, No. 03 Civ. 10100, 2004 WL 1874965, at *2 (S.D.N.Y. Aug. 18, 2004); Keck v. Union Bank of Switzerland, No. 94 Civ. 4912, 1997 WL 411931, at *2 (S.D.N.Y. July 22, 1997) (deposition re- opened where affidavit provided evidence conflicting with witness testimony). Where the deposition is re-opened because of newly discovered information, the questioning of the witness is limited to those questions relating to the newly produced information. See Vincent, 2006 WL 726680, at *2; Keck, 1997 WL 411931, at *2-4; Dash, 2015 WL 4257329, at *6. In addition, courts will also re-open a deposition “where the witness was inhibited from providing full information at the first deposition.” Miller v. Massad-Zion Motor Sales Co., No. 3:12 CV 1363, 2014 WL 4979349, at *2 (D. Conn. Oct. 6, 2014) (internal quotations and citation omitted); see Keck, 1997 WL 411931, at *1; Sentry Ins., 2012 WL 3288178, at *7.

         2. Application to the Facts As an initial matter, the Court points out that Plaintiff's motion was untimely when it was filed since the deadline for completion of fact discovery (after being extended by this Court three times) was April 2, 2016. See March 2, 2016 Electronic Order (extending the discovery deadline by 30 days and advising the parties that no further extensions would be granted). Although the Court subsequently granted Defendants a brief extension of time - from May 11, 2016 to May 20, 2016 - to comply with the Court's April 27, 2016 Order [DE 65], such an extension was granted only for this limited basis and did not serve to concomitantly extend Plaintiff's time to engage in discovery-related motion practice. Significantly, Plaintiff did not seek leave, either prior to or contemporaneously with, the instant motion, to re-open discovery, nor has counsel addressed the factors applicable to such an inquiry, which are grounded upon whether “good cause” exists. See Torres v. Dematteo Salvage Co. Inc., No. CV14774, 2016 WL 845326, at *4 (E.D.N.Y. Mar. 2, 2016) (setting forth the six-factor test and recognizing that “[a] party seeking to reopen discovery bears the burden of establishing good cause”); Thieriot v. Jaspan Schlesinger Hoffman, LLP, No. 07-CV-5315, 2010 WL 4038765, at *6 (E.D.N.Y. Sept. 30, 2010) (quoting Pharmacy, Inc. v. Am. Pharm. Partners, Inc., No. 05-CV-776, 2008 WL 4415263, at *3 (E.D.N.Y. Sept. 24, 2008)). Nevertheless, given the passage of time, the Court will address the merits of Plaintiff's motion.

         The gravamen of Plaintiff's argument in support of re-opening the depositions of DA Spota, Chief Ewald and ADA Constant rests primarily on the premise that the documents produced by Defendants in response to this Court's April 27, 2016 Order revealed new information upon which each of these witnesses should be questioned. See DE 67 at 2. However, the court is not convinced that the information set forth in these additional materials is “new.” Rather, a review of the Complaint, the Amended Complaint, the deposition excerpts and prior Orders of this Court supports the alternative conclusion that such information amplifies and perhaps confirms certain information already in Plaintiff's possession concerning these three former ADAs. See Compl. ¶ 9 (referring a “dark skinned female of South Asian national origin”); Am. Compl. ¶ 9 (noting that the NYSDHR probable cause determination referenced a “dark skinned female of South Asian national origin” as the only other ADA who was terminated by the Suffolk County DA in 2013); DE 42 ¶ 5 (February 11, 2015 Minute Order recognizing that “In response to the Court's inquiry, plaintiff's counsel confirmed that the plaintiff is aware of specific Assistant District Attorneys who purportedly engaged in conduct more egregious than the plaintiff and who were not disciplined at all or not disciplined as severely as the plaintiff. I have ...


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