Opinion
No. 04 Civ. 3024 (BSJ) (MHD).
June 29, 2005
MEMORANDUM ORDER
During the course of discovery, defendants learned that plaintiff had made some surreptitious recordings of conversations that he had had with several employees of the defendant corporations. When this matter was raised with the court on June 8, 2005, we directed that he turn over all such recordings, several of which he had apparently alluded to in the course of deposition testimony but had not yet provided either to his own counsel or to defendants' attorney. The deadline for this production (or the submission of an affidavit stating that plaintiff no longer had the tapes) was June 22, 2005.
Defendants recently raised this issue again, asserting that plaintiff had still not turned over all of the tapes. (June 22, 2005 letter to the Court from Brian S. Sokoloff, Esq.). Plaintiff's attorney subsequently wrote to the court expressing her belief that the plaintiff had in fact provided all such tapes, an assertion said to be supported by her reading of deposition transcripts of a Mr. Frank Alessio. (June 23, 2005 letter to the Court from Irene Donna Thomas, Esq.). In view of this disagreement, we authorized both sides to submit to the court the pertinent deposition transcripts for our review. (Endorsed Orders dated June 23 24, 2005). Defendants' counsel has done so (see June 27, 2005 letter to the Court from Brian S. Sokoloff, Esq.), whereas plaintiff's attorney has not responded.
It appears that some confusion has been engendered by the fact that plaintiff had replaced his original attorney after the deposition session at which the tapes were the subject of testimony and colloquy.
Having reviewed the submitted letter and transcripts, we conclude that plaintiff has plainly failed to produce all of the audiotapes that he previously acknowledged having created and withheld from production. These appear to include three tapes that were displayed at plaintiff's deposition and labeled exhibits E, F and G, and one or more additional tapes that plaintiff acknowledged having created and not given to his attorney.
Although plaintiff is in plain violation of a prior court order, he will be given one last opportunity to comply. Complete production of these tapes is to be made to defendants' counsel by no later that July 7, 2005. If plaintiff has prepared any transcripts of these recordings, copies of those transcripts are to be supplied at the same time. By the same date plaintiff is also to provide to defendants an affidavit stating that whatever tapes are being produced represent all of the tapes in his custody or control. If defendants wish to question plaintiff further on this matter, they may notice a brief (one-hour maximum) deposition of him for that purpose, to be completed by no later than July 15, 2005.
The due date for the joint pre-trial order remains July 29, 2005.