Calhoun v. Mastec, Inc.

Full title: EDDIE CALHOUN, Plaintiff, v. MASTEC, INC., et al., Defendants

Court: United States District Court, W.D. New York

Date published: Jun 1, 2004

03-CV-0386S(Sr) (W.D.N.Y. Jun. 1, 2004)

Opinion

03-CV-0386S(Sr).

June 1, 2004

ORDER

KEN SCHROEDER, Magistrate Judge

DECISION AND ORDER

This matter was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b), for all pretrial matters. Dkt. #4. Currently before the Court is the defendants' motion to compel and for costs and sanctions (Dkt. #17), and the non-party witnesses' motion for a protective order. Dkt. #20. For the following reasons, the defendants' motion is granted and the non-party witnesses' motion is denied.

BACKGROUND

Plaintiff Eddie Calhoun commenced this action, pursuant to 42 U.S.C. § 1983, alleging that his termination from employment was motivated by racial discrimination. Dkt. #1. Plaintiff's first supplemental disclosure pursuant to Fed.R.Civ.P. 26, identified Erik Vossler and Lynda J. Vossler as individuals possessing discoverable information to support plaintiff's claims. Plaintiff attached to that disclosure affidavits from Lynda J. Vossler and Erik W. Vossler in support of his discrimination claim against defendants. Dkt. #18, Exh. B. These affidavits contain specific information relating to plaintiff's allegations of racial harassment. For example, Lynda Vossler avers, inter alia, that her supervisors instructed her to document everything that plaintiff and other African American technicians did wrong, and Erik Vossler avers, inter alia, that supervisors referred to plaintiff by use of a racial epithet. Dkt. #18, Exh. B. As a result of these disclosures, defendants issued subpoenas for the depositions of these individuals. Specifically, by subpoena dated January 13, 2004, defendants subpoenaed Lynda Vossler for 10:00 a.m. on March 16, 2004 and Erik Vossler for 2:00 p.m. on March 16, 2004. Dkt. #18, Exh. CD.

By letter dated January 28, 2004, plaintiff's counsel advised that

Your proposal to take the deposition of both Vosslers appears to be excessive. One should be sufficient. The parties will be present since the Vosslers also have a claim against Phasecom.

Dkt. #18, Exh. E. By letter dated February 5, 2004, defense counsel responded that

I am unable to agree to your request that Defendant depose only one of the Vosslers. Erik and Lynda Vossler were both identified in Plaintiff's First Supplemental Rule 26 Disclosures, dated November 24, 2003, as individuals having discoverable information to support the Plaintiff's claims. Both Erik and Lynda Vossler are non-party witnesses who have been duly served with supoenas. Based on Plaintiff's Disclosures, I have reason to believe their testimony is relevant. As such, I cannot consent to forego deposing either of them. I stand by my subpoenas.

Dkt. #18, Exh. F.

On February 5, 2004, the non-party witnesses commenced an action alleging violations of the New York Executive Law against their former employer, Phasecom America, a defendant in this action, in New York State Supreme Court, County of Erie. Specifically, Lynda Vossler claims that she was sexually harassed by a co-worker and that both she and her husband, Erik Vossler, were terminated in retaliation for their complaints about such harassment. The defendant removed the action to this Court on February 26, 2004. See Vossler v. Phasecom America, 04-CV-128S(Sr).

At approximately 9:45 a.m. on March 16, 2004, both of the Vosslers arrived at defense counsel's office and plaintiff's counsel demanded that they be permitted to remain in the conference room during the other's deposition testimony. Dkt. #18, ¶ 16. Following an unproductive discussion of this issue, counsel telephoned the undersigned to resolve the dispute. Dkt. #18, ¶ 23.

The Court heard argument from both attorneys regarding their respective positions on the issue. Specifically, defense counsel set forth his concern that allowing Erik Vossler's presence during questioning of Lynda Vossler might influence, consciously or subconsciously, his subsequent testimony and could alter Mr. Vossler's recollection of events. Defense counsel expressed concern that the Vossler's were already biased against the defendants as evidenced by the fact that they had commenced their own discrimination lawsuit against Phasecom America. Defense counsel also noted that Mr. Vossler could wait in the reception area during Ms. Vossler's testimony and emphasized that any inconvenience Mr. Vossler might experience was of his own creation inasmuch as the subpoena did not request his presence until 2:00 p.m. In response, counsel for the non-party witnesses requested that any decision be rendered "by the book" and directed the Court to the Advisory Committee's Note regarding the 1993 amendments to Fed.R.Civ.P. 30(c). After hearing argument from both attorneys and reviewing Fed.R.Civ.P. 30(c) and the Advisory Committee's Note, the Court ordered that the depositions proceed with the testimony of Lynda Vossler while Erik Vossler waited in the reception area, but allowed Lynda Vossler to remain in the conference room during the subsequent deposition of Erik Vossler.

Following the Court's ruling, plaintiff's counsel suggested that the Court's telephonic Order was improper in light of the Court's Case Management Order, which provides that:

All applications to resolve discovery disputes shall be filed no later than 30 days before the discovery completion date. In the event of bonafide discovery disputes that cannot be resolved by counsels' good faith efforts ( see generally Local Rule 37), the parties shall submit, by joint letter, signed by all counsel, a statement of the issue(s) to be resolved by the Court. Each party, within five business days thereafter, shall submit by letter a statement of facts and law it wishes the Court to consider. Original letters shall be filed with the Clerk of the Court, and a courtesy copy shall be provided simultaneously to Chambers. The Court reserves the right to request full briefing by the parties, in which case the Court will so advise the parties.

Dkt. #7. The Court advised plaintiff's counsel that this procedure did not preclude the Court from issuing a telephonic order and that such an order was certainly appropriate under the circumstances given that the court reporter, counsel, the non-party witnesses and the parties were present and otherwise prepared to proceed. Before concluding the telephonic conference, the Court specifically warned counsel for the non-party witnesses that his failure to abide by the Court's Order could result in a finding of contempt and the imposition of sanctions.

Despite this warning, counsel for the non-party witnesses subsequently placed the following statement on the record before the court reporter present to transcribe the scheduled depositions:

Well, we've made our position clear. This is governed by Rule 30C [sic] in Federal Rule of [sic] 615 and by the case management [sic] paragraph seven. This will have to be put in front of the Court then, the necessary stuff.

I am willing to go forward today if Mr. Belter agrees to take his deposition with both witnesses present.

Dkt. #18, Exh. G, p. 4. Erik Vossler, Lynda Vossler and the non-party witnesses' counsel subsequently left the premises. Dkt. #18, ¶¶ 28-29.

DISCUSSION AND ANALYSIS

Motion for a Protective Order

Counsel for Lynda and Erik Vossler moves for a protective order permitting his clients to attend each other's deposition. Dkt. #20. In support of his motion for a protective order, counsel states that excluding them from the testimony of the other

will be a hardship to them, and will disrupt the preparation of their case. They will be questioned on matters of employment which pertains both to Mr. Calhoun's case and to their own case.

Dkt. #20, ¶ 11a.

Rule 30(c) of the Federal Rules of Civil Procedure provides, inter alia, that "[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615." Rule 615 of the Federal Rules of Evidence provides, inter alia, that "[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion." As stated in the advisory committee notes,

other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate . . .

Fed.R.Civ.P. 30(c) Advisory Committee's Note, 1993 amendments. Pursuant to Fed.R.Civ.P. 26(c)(5), the Court "may make any order which justice requires," including "that discovery be conducted with no one present except persons designated by the court." Thus, although exclusion of witnesses at a deposition are no longer mandatory, the Court retains discretion to order such exclusion. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) ("To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.").

In the instant case, the Court exercised its discretion to exclude Erik Vossler from the conference room during the deposition of Lynda Vossler in light of defense counsel's concern that Lynda Vossler's testimony might influence his subsequent testimony, consciously or subconsciously, and could alter his recollection of events. This concern is particularly pressing given the Vossler's potential bias against defendants due to their unrelated allegations of discrimination against defendant Phasecom America. In addition, as non-parties to this action, Erik and Lynda Vossler have no particular interest in the deposition testimony of the other with respect to Mr. Calhoun's allegations. Finally, although counsel did not raise this argument during the telephonic conference, the Court notes that the presence of plaintiff's counsel, who is also the witnesses' counsel, is sufficient to protect Erik and Lynda Vossler from any questions which stray beyond the scope of relevance to the instant action. Thus, the Court is hard pressed to find any legitimate concerns which weigh against the defendants' demonstration of good cause for exclusion. The non-party witnesses' motion for a protective order is DENIED. Motion to Compel and for Costs and Sanctions

Defendants move for an order compelling Lynda and Erik Vossler to appear for their respective depositions on a date and time that is agreeable to defendants' counsel and to comply with the Court's order excluding Erik Vossler from the conference room during Lynda Vossler's deposition. Dkt. #17, ¶ 36. Defendants also seek costs, including attorneys' fees, with respect to this motion, any appeal of this motion, the prior depositions, the conferences with the Court and all other related matters, as well as sanctions against plaintiff's counsel for his disregard of this Court's order. Dkt. #17, ¶¶ 37-38. Finally, defendants request an extension of the case management order to permit completion of the depositions of Lynda and Erik Vossler. Dkt. #17, ¶ 39.

Counsel for the non-party witnesses responds that sanctions are inappropriate inasmuch as he is entitled to appeal this Court's order and because defendants should have sought an order of protection from the Court prior to the depositions. Dkt. #21, pp. 2-3. Plaintiff's counsel also argues that the defendants failed to demonstrate that they "incurred more than nominal stenographic costs, and as to the attorney [sic] fees, this litigation is incident to the proceeding." Dkt. #21, p. 3.

At no time during the course of the telephonic conference did plaintiff's counsel request a stay so that counsel could seek review of this Court's order. In addition, defense counsel's request that the Court order the exclusion of Erik Vossler from the conference room during the deposition testimony of Lynda Vossler constitutes a request for a protective order. The Court heard argument from defense counsel regarding the grounds for such an order and from counsel for the plaintiff and non-party witnesses opposing the request. After hearing the respective arguments and reviewing the Advisory Committee's Note regarding the 1993 amendments to Fed.R.Civ.P. 30(c), the Court ordered that the depositions proceed with Erik Vossler excluded from the conference room during the course of Lynda Vossler's deposition and allowing Lynda Vossler to remain in the conference room during the course of Erik Vossler's subsequent deposition. "The fact that the . . . order was oral rather than written . . . does not deprive it of any of its binding force and effect." Penthouse Int'l, Ltd. v. Playboy Enters., 663 F.2d 371, 388 (2d Cir. 1981).

"Provided that there is a clearly articulated order of the court requiring specified discovery, the district court has the authority to impose Rule 37(b) sanctions for noncompliance with that order." Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir. 1991); see also Fed.R.Civ.P. 37(b)(1) ("If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court."). Fed.R.Civ.P. 37(b)(2) provides, inter alia, that "the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."

When counsel for the non-party witnesses balked at the Court's ruling, the Court specifically warned counsel that his failure to abide by its order could result in a finding of contempt and the imposition of sanctions. Despite this warning, counsel took it upon himself to defy the Court and instruct the non-party witnesses to leave the deposition. Counsel's sole basis for this defiance was concern for a procedure which the Court advised was inapplicable to the emergent circumstances presented, to wit, the presence of a court reporter, the parties, subpoenaed witnesses, and counsel otherwise prepared to go forward with the depositions. In light of these circumstances, the Court finds it entirely appropriate for counsel for the non-party witnesses to bear the costs incurred as a result of his contempt of this Court's order.

CONCLUSION

For the foregoing reasons, defendant's motion to compel and for sanctions (Dkt. #17), is GRANTED, and the motion for a protective order by the nonparty witnesses (Dkt. #20), is DENIED.

Lynda and Erik Vossler are ordered to appear for their respective depositions at a mutually agreeable date and time within 30 days of the entry of this order. Their depositions are to proceed in accordance with the Court's order of March 16, 2004, to wit, Erik Vossler shall be excluded from the conference room during the deposition of Lynda Vossler, but Lynda Vossler shall be permitted to remain in the conference room during the subsequent deposition of Erik Vossler.

Defense counsel shall file an affirmation of costs and fees, including attorney's fees, attributable to the cancellation of the deposition, appearance at the status conference of March 22, 2004, preparation of the instant motion, and appearance at oral argument on April 20, 2004, no later than June 14, 2004. Counsel for the non-party witnesses shall file with the Court any objections he may have to the affirmation of costs and fees no later than June 21, 2004, at which time the Court will take the matter under advisement.

SO ORDERED.