Opinion
452133/2016
07-29-2021
Victoria BRIGHTMAN, Plaintiff, v. CORIZON, INC., Corizon Health, Inc., Correctional Medical Associates of New York, PC, Jean Richard, and Donald Doherty, Defendants.
Law Office of Sandra D. Parker, New York, NY (Sandra D. Parker of counsel), for plaintiff. SAIBER, LLC, New York, NY (Jennine DiSomma, Jakob B. Halpern, and Vincent C. Cirilli of counsel), for defendants.
Law Office of Sandra D. Parker, New York, NY (Sandra D. Parker of counsel), for plaintiff.
SAIBER, LLC, New York, NY (Jennine DiSomma, Jakob B. Halpern, and Vincent C. Cirilli of counsel), for defendants.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70 were read on this motion to/for DISCOVERY.
In this employment-discrimination action, the parties are at loggerheads over discovery, and in particular, the conduct of plaintiff's deposition. Defendants assert that plaintiff's counsel has been obstructionist during the deposition—repeatedly interposing improper or speaking objections, directing plaintiff not to answer proper questions, and coaching plaintiff during a mid-deposition break. Plaintiff, on the other hand, argues that her counsel was simply protecting her client at deposition from improper and harassing questions and that counsel's conduct was appropriate, zealous advocacy.
Defendants now ask this court to (i) require plaintiff to answer several questions that plaintiff's counsel instructed her not to answer during the deposition; (ii) direct production of a note exchanged between plaintiff and her counsel during the mid-deposition break; (iii) appoint a discovery referee to oversee plaintiff's continued deposition; and (iv) award defendants sanctions and attorney fees.
In considering this motion, this court has reviewed the transcripts of plaintiff's deposition and a video recording of the second deposition. Having considered those materials and the parties’ arguments, this court concludes that plaintiff's counsel's conduct during the deposition was contrary to the Uniform Rules for the Conduct of Depositions, 22 NYCRR part 221, as defendants contend. The branches of defendants’ motion seeking to compel further deposition discovery are granted. The branch of defendants’ motion seeking sanctions is granted in part and denied in part; and the request for appointment of a discovery referee is denied.
DISCUSSION
I. Defendants’ Challenges to Plaintiff's Counsel's Deposition Objections and Instructions Not to Answer
Defendants contend that plaintiff's counsel repeatedly interposed improper objections, including lengthy speaking objections, and that counsel on multiple occasions instructed plaintiff not to answer questions that she was required to answer. This court agrees.
A. Deposition Objections
Pre-trial depositions are governed by CPLR 3115 and by the Uniform Rules for the Conduct of Depositions. The "Uniform Rules, as amended in 2006, sharply limit the appropriate scope of objections at a deposition." ( Veloso v Scaturro Bros., Inc. , 68 Misc 3d 1024, 1026 [Sup Ct, NY County 2020].) The Rules permit only those objections that would be waived under CPLR 3115 (b) - (d) if not interposed—principally an objection to the form of a question. (See 22 NYCRR 221.1 [a]; CPLR 3115.) Ordinarily, therefore, it would not be proper to object to a question on the ground that the question seeks irrelevant information, or that the question has previously been asked and answered. (See Pedraza v New York City Transit Auth. , 2016 NY Slip Op. 30105[U] at *9 [Sup Ct, NY County Jan. 20, 2016] [noting that objections that are not required to be made should not be made].)
The Uniform Rules also expressly limit "[s]peaking objections." ( 22 NYCRR 221.1 [b].) Objections must instead "be stated succinctly and framed so as not to suggest an answer to the deponent." (Id. ) Additionally, except as otherwise permitted by CPLR 3115 and § 221.1, "persons in attendance" at the deposition "shall not make statements or comments that interfere with the questioning." (Id. ) Speaking objections are thus singled out as undesirable: they are not necessary to preserve an objection to form, they disrupt and impede the conduct of the deposition, and they risk coaching the deponent on how to answer a pending question. (See e.g. Freidman v Fayenson , 2013 NY Slip Op 52038[U], at *11-*12 [Sup Ct, NY County Dec. 4, 2013] [criticizing speaking objections and other statements made by counsel during a deposition], aff'd sub nom. Friedman v Yakov , 138 AD3d 554, 555 [1st Dept 2016].)
This is not to say that attorneys defending depositions are powerless to intervene against questioning that is badgering, harassing, or otherwise improper and prejudicial. Rather, the Uniform Rules make clear that such interventions must be the exception, rather than the norm—and that a given intervention must be (i) uncommon, (ii) made only when plainly necessary, and (iii) no more than extensive than required to protect the witness against the improper line of questioning.
Here, defendants argue that plaintiff's counsel's objections frequently exceeded their proper bounds under the Uniform Rules. This court agrees. The deposition transcripts and recording reflect that counsel made a large—and clearly excessive—number of objections, many of which were made on improper relevancy or asked-and-answered grounds, and many of which were speaking objections. The record also reflects that counsel repeatedly made other improper statements and interjections during the deposition, some of which included unnecessary personal commentary directed to the attorney taking the deposition. And several of these improper speaking objections or comments by counsel appeared—whether by intent or merely by effect—to guide the deponent's ensuing answers.
In opposing defendants’ motion, plaintiff's counsel contends that her conduct at plaintiff's deposition was appropriate and no more than necessary to "protect[ ] Plaintiff from the harassing, bullying and coercive conduct of Defendants’ attorney." (NYSCEF No. 67 at ¶ 5.) Having reviewed not only the transcripts of the deposition but also the video recording of the second deposition session, the court is unpersuaded by counsel's contention.
Plaintiff also contends that defendants did not attempt to resolve the disputes between the parties short of motion practice, as 22 NYCRR 202.7 (a) requires. (See NYSCEF No. 67 at 3.) The record reflects, though, that before filing this motion defendants sent plaintiff a detailed letter identifying areas of dispute and articulating defendants’ position, and also attempted unsuccessfully to schedule a call between the counsel for each side to address their disagreements.
B. Instructions Not to Answer
The Uniform Rules provide that even when a proper objection has been posed, the witness must still ordinarily answer the question—and that counsel may not direct the witness to refrain from answering. (See 22 NYCRR 221.1 [a], 221.2.) This rule has three narrow exceptions: (i) to "preserve a privilege or right of confidentiality"; (ii) to enforce a limitation set forth in a court order; (iii) "when the question is plainly improper and would, if answered, cause significant prejudice to any person." ( 22 NYCRR 221.2 [a]-[c].)
Defendants object to three instances in which plaintiff's counsel instructed her client not to answer deposition questions. The first concerned plaintiff's use of her son's email address for work communications (see NYSCEF No. 53 at 301-304); the second addressed attempts by defendants to review plaintiff's driver's license while they still employed her (id. at 383); and the third involved questions about plaintiff's understanding of certain staff requirements mandated by defendants’ contract with New York City (id. at 495).
This court concludes that plaintiff should be required to answer each of these questions. With respect to the first question, plaintiff contends now that counsel's instruction not to answer was proper because the question sought information both irrelevant and confidential. (See NYSCEF No. 67 at ¶ 31-32.) But relevancy is not a basis on which to instruct a witness not to answer. Given that plaintiff herself testified that she sometimes used her son's email address for Corizon-related correspondence, defendants’ asking for that address sought relevant information. And as this court held in Veloso , that an email address might be "private" in the ordinary sense of the word does not mean that defendants’ asking for an email address at deposition would abridge the deponent's "right of confidentiality" within the meaning of § 221.2 (a). ( See 68 Misc 3d at 1028 -10130.) Further, plaintiff does not dispute that the parties had entered into a confidentiality agreement that encompassed her deposition testimony.
With respect to the second question, this court understands plaintiff's position that the general topic of defendant Donald Doherty's assertedly asking plaintiff for her driver's license had been repeatedly covered already before this particular question. At the same time, the particular question at issue was somewhat different: in effect, why plaintiff would object to providing Doherty with her driver's license or a copy to eliminate doubt about her professional credentials. And that was new ground. Additionally, even if plaintiff's counsel believed that defendants’ continuing to ask questions on this general topic was harassing and therefore patently improper, a direction not to answer is proper only if a question is patently improper and would be prejudicial if answered. (See 22 NYCRR 221.2 [c].) Plaintiff has not demonstrated that she would have been prejudiced had she been required to answer the particular question at issue. Even if defendants’ question had been mischaracterizing plaintiff's prior testimony, as plaintiff asserts (and this court is skeptical that plaintiff is correct on that point), plaintiff could have addressed any such mischaracterization in her answer.
With respect to the third question, as this court reads the transcript, plaintiff's counsel's instruction not to answer was based on counsel's view that the question at issue had already been asked and answered. An asked-and-answered objection is not a proper basis to instruct a witness not to answer. This court also agrees with defendants that plaintiff had not yet fully answered the question at the time of the instruction not to answer; and that plaintiff's subsequent answer was difficult to understand and not responsive.
Plaintiff's counsel lacked a proper basis to instruct plaintiff not to answer these questions. Defendant's motion to compel is granted.
II. The Consultation Between Plaintiff and Her Counsel During a Deposition Break
The parties also disagree over whether plaintiff properly refused to turn over (or answer any questions about) a note she received from her counsel during a brief break in the deposition sought by plaintiff for health-related reasons with a question pending. This court concludes that plaintiff must answer questions about this communication between plaintiff and her counsel.
Plaintiff's assertion that no question was pending at the time she sought a break (see NYSCEF No. 67 at ¶ 24) is incorrect. (See NYSCEF No. 53, Tr. 497:11-498:20.)
Defendants urge that plaintiff's communications are not shielded by privilege because they occurred during a deposition break. Defendants rely in part on § 221.3 of the Uniform Rules governing depositions. But that regulation provides only that an "attorney shall not interrupt the deposition for the purpose of communicating with the deponent," absent circumstances not present here. (See 22 NYCRR 221.3 [emphasis added].) And it is undisputed (indeed indisputable) that the communication between deponent and counsel at issue here occurred during a break taken to accommodate the deponent's physical limitations, rather than for the purpose of communication. (See NYSCEF No. 53, Tr. at 497:11-498:23.)
Defendants also rely on two federal district court decisions about the procedures governing depositions taken under the Federal Rules of Civil Procedure. (See NYSCEF No. 43 at 17.) But defendants cite no New York cases holding that the analysis in these decisions carries over to depositions taken under the CPLR and its implementing regulations.
In addition, defendants, citing CPLR 3113, analogize between restrictions on witness-counsel consultation during deposition and witness-counsel consultation during trial breaks. (See NYSCEF No. 43 at 17.) This analogy is unavailing.
A trial court is afforded "broad discretion ... in its management of a trial." ( People v Branch , 83 NY2d 663, 667 [1994].) Thus, the court may exercise its discretion to bar consultation between a party and her counsel while the party is testifying (at least to the extent consistent with the party's constitutional rights). (See People v Narayan , 58 NY2d 904, 906 [1983] ; accord People v Enrique , 165 AD2d 13, 16-17, 19 [1st Dept 1991], aff'd on opn. below 80 NY2d 869 [1992].) But no statute or rule imposes a categorical and self-executing bar on communications between party and counsel during a break in trial testimony. The only such rule in the context of deposition testimony is § 221.3, which, as discussed above, does not apply here. The deposition did not occur before a judge or special referee who imposed a more particularized bar on consultation during the break at issue here. And defendants do not urge this court to hold that the court has inherent authority to impose that bar now retrospectively.
Nor do defendants point to any agreement between the parties barring consultation during deposition breaks.
This court would be unlikely to arrogate that authority to itself regardless.
In short, defendants have not shown that the communication at issue here between plaintiff and her counsel was impermissible. Nor, for that matter, have defendants provided authority for the proposition that otherwise-privileged communications between client and attorney lose that status merely by virtue of being "impermissible" under the rules governing depositions.
That defendants have not made this showing does not end the inquiry, however. Ultimately, what occurred here was that plaintiff's counsel instructed her client not to answer questions posed during a deposition. In the circumstances of this exchange, that instruction would be permissible only to protect a privilege or right of confidentiality. (See 22 NYCRR 221.2 [a].) At the deposition itself, plaintiff's counsel asserted—without elaboration—that the instruction not to answer was on the basis of "[c]onfidentiality." (NYSCEF No. 53 at 499:9-12.) On this motion, plaintiff's counsel suggests in conclusory fashion that defendants’ questions sought information about a "privileged communication." (NYSCEF No. 67 at ¶ 25.) But counsel has not established that the necessary elements of the attorney-client privilege were satisfied; nor articulated what right of confidentiality shielded plaintiff from questions about their communication.
Defendants’ questions about the conversation between plaintiff and her counsel were neither patently improper nor somehow barred by a prior court order. (See 22 NYCRR 221.2 [b]-[c].)
Thus, on this record plaintiff has not shown that her counsel permissibly instructed her not to answer questions about their communication. Plaintiff must therefore answer those questions.
III. Defendants’ Request for Sanctions
In addition to moving to compel further discovery, defendants ask this court to impose sanctions for frivolous conduct under 22 NYCRR § 130-1.1, to enjoin plaintiff's counsel from engaging in assertedly obstructive conduct during the deposition, and to appoint a special referee to oversee discovery.
Defendants argue that plaintiff's counsel's conduct during the deposition, particularly during the second deposition session, was needlessly and impermissibly obstructive, to the point of being frivolous. Defendants therefore request sanctions in the amount of (i) defendants’ fees and costs incurred during the second deposition session (including the cost of the court reporter and videographer); and (ii) defendants’ fees and costs incurred in making this motion. (See NYSCEF No. 43 at 18-21.)
As discussed above in Point I, this court agrees with defendants that many of plaintiff's counsel's objections, interjections, and instructions not to answer during the second deposition session were contrary to §§ 221.1 and 221.2 of the Uniform Rules for the Conduct of Depositions. The court is not persuaded that this conduct, although inappropriate, necessarily rose (or sank) to the level of warranting sanctions under § 130-1.1.
That said, counsel's conduct, including multiple meritless instructions not to answer, did force defendants to incur the needless effort and expense of making this motion to obtain definitive and binding guidance from this court about what counsel may—and may not—do in defending her client's deposition. The court therefore concludes that plaintiff should be required under CPLR 3126 to pay $1,500 to defendants’ counsel to defray the cost of making the current motion. And should plaintiff's counsel persist in conduct violating part 221 of the Uniform Rules during further deposition sessions, defendants may renew their request for § 130-1.1 sanctions.
Given the further guidance provided in this decision on the appropriate scope of conduct under part 221, and the reminder of the potential consequences for further violations of those regulations are not acceptable, this court concludes that it is not necessary at this time to appoint a discovery referee or issue an injunction against plaintiff or her counsel.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the branch of defendants’ motion to compel under CPLR 3124 is granted to the extent that defendants may, within 14 days of service of a copy of this order with notice of its entry, submit a list of written questions to plaintiff regarding her son's email address, defendant Doherty's request to view her driver's license, plaintiff's understanding of staffing requirements, and the consultation between plaintiff and her counsel discussed above; and plaintiff shall, within 14 days of receipt of such written questions, provide sworn written responses to those questions; and it is further
ORDERED that the branch of defendants’ motion seeking sanctions is granted only to the extent that plaintiff shall, within 45 days of service of notice of entry, pay $1,500 to defendants’ counsel under CPLR 3126 ; and it is further
ORDERED that the branch of defendants’ motion seeking injunctive relief and appointment of a discovery referee is denied without prejudice; and it is further
ORDERED that the parties are directed to meet and confer to schedule the further deposition of plaintiff and make arrangements for the completion of other outstanding discovery in the action; and it is further
ORDERED that the parties shall appear before this court for a telephonic status conference on Friday, August 20, 2021.