United States District Court, W.D. New York
BRYAN DIFRANCESCO, as father and natural Guardian of the infant minor LD, and BRYAN DIFRANCESCO, Individually, Plaintiffs,
WIN-SUM SKI CORP., HOLIDAY VALLEY, INC., Defendants.
Hugh B. Scott United States Magistrate Judge.
the Court is defendants' motion to compel the
supplemental deposition of plaintiff Dr. Bryan DiFrancesco
(Docket No. 75). Plaintiffs filed opposing papers (Docket No.
76, Pls. Counsel Declaration, with exhibits, and Memorandum
of Law) and, pursuant to this Court's schedule
(see Docket No. 74), this matter was argued on April
6, 2017 (Docket No. 78).
also moved for extension of the deadline to complete certain
discovery (Docket No. 77) and following discussion on April 6
(Docket No. 78), responses to that motion are due by April
13, 2017, with argument scheduled for April 19, 2017, the
same date as a pretrial conference in this case (Docket No.
79; see Docket No. 72). This case is currently
scheduled for trial on July 17, 2017 (e.g., Docket
a personal injury action commenced under this Court's
diversity jurisdiction. Prior to trial of this case,
defendants sought photographs and documents of infant
plaintiff LD's post-accident athletic activities (such as
skiing, snowboarding, and participating in sports). In a
previous Order as the case neared trial, parties were given
until April 5, 2017, to supplement aspects of discovery, with
a subpoena defendants attempted to serve upon plaintiffs for
materials from plaintiff Dr. DiFrancesco being converted into
a document request (Docket No. 70, Order of Feb. 22, 2017).
Defendants served not only a document demand but also noticed
Dr. DiFrancesco's deposition. They seek to compel that
deposition, arguing that photographs plaintiffs recently
produced lacked foundation and may have existed prior to
DiFrancesco's 2014 deposition (Docket No. 75). Plaintiffs
oppose, arguing that this supplementation is unnecessary and
is cumulative and duplicative of testimony about LD's
activities after the accident (Docket No. 76).
argument on April 6, 2017 (Docket No. 78), defense counsel
announced that they were available to conduct Bryan
DiFrancesco's deposition on a date between April 18 and
April 26, 2017, with that deposition consisting of only one
to two hours. Plaintiffs' counsel was unaware of Dr.
DiFrancesco's schedule or their own availability.
sides noted (Docket No. 75, Defs. Memo. at 2; Docket No. 76,
Pls. Memo. at 5; see Docket No. 78), this Court has
the discretion to compel the continued deposition, see
Tri-Star Pictures, Inc. v. Unger, 171 F.R.D. 94, 101
(S.D.N.Y. 1997); Brown v. Victor, No. 11CV35, 2017
U.S. Dist. LEXIS 5452 (W.D.N.Y. Jan. 13, 2017) (Scott, Mag.
J.) (in exercise of Court's discretion, ordering second
deposition of former pro se plaintiff). In
Tri-Star Pictures, the Southern District of New York
court allowed the second deposition of a party's counsel
subject to specific conditions to limit the examination to
new claims and issues and not to elicit testimony that leads
to attorney-client privilege matters, 171 F.R.D. at 102-03.
Defendants' motion to compel (Docket No. 75) is granted.
Court previously noted the parties' discovery obligation
to supplement their production (Docket No. 70, Order at
10-12). Plaintiffs then produced photographs with what
appears to be minimal foundational information. Defense
contends that many of these photographs were available to
plaintiffs when defendants first requested their production
in 2013 and leading to Dr. DiFrancesco's initial
deposition in 2014. Plaintiffs object that the examination of
Dr. DiFrancesco would be burdensome, duplicative and
cumulative; it would be cumulative of his testimony (Docket
No. 76, Pls. Atty. Decl. Ex. A) (as well as LD and her
mother's deposition testimonies, id., Exs. B, C)
regarding LD's post-accident athletic activities. Since
the photographs were just recently produced, questions about
their provenance would not be duplicative of Dr.
DiFrancesco's prior testimony. With the examination
scheduled at a mutually convenient date, further questioning
of Dr. DiFrancesco will not be burdensome. As for the
cumulative nature, plaintiffs and Mrs. DiFrancesco testified
generally to LD's post-accident athletics and not to a
particular event. The photographs probably depict LD at
particular activities testimony about any particular event
would not be cumulative. Despite the defense seeking
initially a subpoena duces tecum (that is, document
production only), a further deposition about the documents
now produced should advance this case to trial.
reasons stated above, defendants' motion (Docket No. 75)
to compel plaintiff Dr. Bryan DiFrancesco's supplemental
deposition is granted; parties are to schedule and conduct
that deposition on a mutually agreed upon date between April
18-26, 2017, or report to this Court on April 19, 2017,
during argument and the pretrial conference when that
deposition will be held.
jury selection and trial of this matter remains scheduled to