Opinion
No. 02 Civ. 8909 (KMW) (RLE).
July 18, 2005
MEMORANDUM OPINION AND ORDER
Before the Court is the request for reconsideration of the Court's oral order allowing plaintiff to seek discovery through written deposition questions regarding the disciplinary history, if any, of certain non-party corrections officers. For the reasons which follow, the request is DENIED.
I. INTRODUCTION
During a June 14, 2005 status conference, plaintiff's counsel, Michael Spiegel, informed the Court that defendants' counsel, Liora Jacobi, had directed Correction Officers Montgomery and Coe not to answer questions at their depositions. Specifically, Spiegel sought to ask Montgomery and Coe whether they had been disciplined as a result of the incident which is the subject of plaintiff's complaint and whether they had ever been disciplined for false statements or false reporting. According to Spiegel, Jacobi indicated that the witnesses were not defendants and that the questions were neither relevant, nor reasonably calculated to produce relevant evidence. Jacobi repeated her objections at the conference. The Court indicated to Jacobi that directions not to answer were governed by Rule 30, and that arguments concerning relevancy did not address the requirements of the rule. As a remedy, Spiegel was allowed to propound written questions under Rule 31, limited to the areas of the questions not answered. The witnesses were ordered to respond to the questions. Jacobi requested permission to make a written submission for reconsideration of the Court's ruling. The Court granted permission to submit a memorandum explaining the propriety of her directions to the witnesses not to answer deposition questions, together with supporting authority. In response, Jacobi has submitted a letter brief in which she discusses the discoverability and the relevance of disciplinary records under Rule 26(b)(1), but fails to address her directions to the witnesses not to answer questions which she had considered irrelevant, and the standards for such action under Rule 30.II. BACKGROUND
Discovery in this case has had a tortured history and has involved multiple attorneys from the Corporation Counsel's office. The question of disciplinary records of correctional officers was first presented to the Court on July 15, 2004. At a conference with the parties on that date, the Court ruled that disciplinary records of defendant officers would be produced, and extended the discovery cut-off to September 27, 2004. The individual defendants filed answers to an amended complaint in October 2004, and the Court ruled in January 2005 that records showing complaints against defendants relating to use of force should be produced. In March 2005, the disciplinary records of defendant officers was delayed because counsel disagreed over the terms of a confidentiality agreement. The July 2005 dispute did not involve defendants, and did not involve the production of records.
II. DISCUSSION
Rule 30(d)(1) of the Federal Rules of Civil Procedure provides, in relevant part, that:
A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).
These three pre-conditions which can justify a direction not to answer are straightforward; none are present in this case. Indeed, even after this was pointed out to Jacobi, her request for reconsideration fails to address any of these justifications. Directions not to answer questions at depositions are extremely disruptive, and form a large part of the disputes brought to the Court. Many lawyers appear to be unaware of, or determined to disregard, the specific dictates of Rule 30(d)(1), perhaps in the hope that they will be able to later convince the Court that the area of inquiry was irrelevant under Rule 26. This is not an attitude to be encouraged.
The questions proposed by Spiegel are limited in scope and arguably relevant. The request for reconsideration is DENIED. The witnesses will answer the written deposition questions submitted by Spiegel on or before July 25, 2005.
Finally, the Court finds that the filing of a request for reconsideration which fails to address the appropriateness of the initial direction not to answer has caused unnecessary delay and use of Court resources. It is not clear whether the failure here is merely personal, or whether there is some institutional responsibility to be assessed because the letter brief does not address the specific dictates of Rule 30(d)(1). Jacobi is therefore directed to submit by July 25, 2005, an affirmation stating why her submission does not support any of the justifications under Rule 30(d)(1), and identifying all persons who reviewed or approved the June 24, 2005 request for reconsideration.
SO ORDERED.