Mirlis v. Greer et al
Filing
121
ORDER granting 29 defendants' motion to compel. See attached ruling. Signed by Judge Donna F. Martinez on 4/17/17. (Constantine, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELIYAHU MIRLIS,
Plaintiff,
v.
RABBI DANIEL GREER, and
YESHIVA OF NEW HAVEN, INC.,
Defendants.
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CASE NO. 3:16cv678(MPS)
RULING ON DEFENDANTS' MOTION TO COMPEL
Pending before the court is the defendants' motion to compel
nonparty Aviad Hack to answer certain questions asked at his
deposition. (Doc. #29.)
I.
Procedural Background
The plaintiff, Eliyahu Mirlis, brought this diversity action
against defendants Yeshiva of New Haven, Inc., an orthodox Jewish
school, and Rabbi Greer, the school's principal.
The plaintiff
alleges that defendant Greer sexually molested him from 2002 to
2005 when the plaintiff was a student at the school. (Doc. #117,
Am. Compl. ¶12.)
During the course of discovery, the plaintiff noticed the
deposition of nonparty Aviad Hack ("Hack").
on July 25, 2016.1
Counsel for the deponent objected to some
questions posed by defense counsel.
their
1
differences,
The deposition began
and
thereafter
The lawyers could not resolve
contacted
The deposition resumed on August 2, 2016.
Judge
Shea,
who
referred the dispute to me.
(Doc. #21.)
I held a conference call
with counsel and advised them to make a clear and precise record at
the deposition so as to permit meaningful judicial evaluation.
I
repeated on the docket that any motion to compel regarding the
deposition
must
specify
"with
particularity
each
question
at
issue." (Doc. #25.) The defendants subsequently filed the instant
motion.2 (Doc. ##29, 33.)3
II.
Discussion
The defendants' motion to compel concerns the deponent Hack's
conversations with two other nonparties - Yaakov Hatanian and Rabbi
Hillel David.4
A.
Hack's conversation with Yaakov Hatanian
The deponent Hack attended the defendant Yeshiva of New Haven
and later worked for Greer at the school.
Hack testified that from
1991 or 1992, when he was a student, until 2004, he was involved in
a sexual relationship with defendant Greer.
22 - 25.)
(Hack Dep. 7/25/16 at
Hack further testified that (1) he was aware that Greer
was sexually molesting the plaintiff and (2) Greer made admissions
to him about Greer's involvement with the plaintiff. (Hack Dep.
2
I heard oral argument on April 4, 2017.
3
After the pending motion was briefed, at the court's request,
counsel submitted Hack's entire deposition transcript to chambers.
4
The
defendants'
motion
initially
encompassed
Hack's
conversations with defendant Greer. (Doc. #29 at 6.) However,
during oral argument, defense counsel stated that the motion was
now limited to Hack's conversations with Hatanian and Rabbi David.
2
7/25/16 at 39, 42-44.)
Defense counsel asked Hack questions about another former
student named Yaakov Hatanian ("Hatanian").
Hack testified that
the last time he spoke to Hatanian was December 17, 2015.5
The
following colloquy ensued:
Defense counsel:
Hack's counsel:
What was that conversation about?
. . . .
You don't have to answer the question
if you don't want to. I don't think
it's relevant or calculated to lead
to admissible evidence. . . .
(Tr. 7/25/16 at 95.)
The defendants move to compel Hack to answer the question.6
Hack's counsel objects on the grounds that the subject matter of
the conversation is not relevant.
B.
Legal Standard
"It is improper to instruct a witness not to answer a question
on the basis of relevancy."
7 James Wm. Moore et al., Moore's
Federal Practice ¶30-88 (3d ed. 2016). "[I]f there is an objection
to the question on such grounds, the court reporter should note the
5
The date of Hack's last conversation with Hatanian is
referred to variously as occurring in September 2015 ("When was the
last time you spoke to Yaakov Hatanian? A. September 17, 2015" Tr.
7/25/16 at 95) and December of 2015. (Q: "You also mentioned that
you had a conversation with Hatanian on December 17, 2015." A.
Yes." Tr. 8/2/16 at 76.)
6
Fed. R. Civ. P. 37(a)(3)(B)(i) provides that "[a] party
seeking discovery may move for an order compelling an answer . . .
if: (i) a deponent fails to answer a question asked under Rule 30
. . . ."
3
objection but the examination should proceed." Baines v. City of
N.Y., No. 10CV9545, 2016 WL 3042787, at *3 (S.D.N.Y. May 27, 2016).
Pursuant to Fed. R. Civ. P. 30(c)(2)7, "[a] deponent may only
refuse
to
testify
under
three
circumstances:
to
preserve
a
privilege; to enforce a Court ordered limitation; or to present a
motion
under
Rule
30(d)(3)."
Kelley
v.
City
of
Hamden,
No.
3:15CV00977(AWT)(SALM), 2016 WL 5348568, at *2 (D. Conn. Sept. 23,
2016).
None of these three circumstances existed here.
The deponent
did not assert a privilege; the court had not ordered a limitation
regarding testimony pursuant to Rule 26(c); the deponent did not
present a motion under Rule 30(d)(3).
If examining counsel engages in irrelevant and objectionable
questioning,
the appropriate course for opposing counsel is to enter
an objection. The witness may then answer the question.
If the answer is offered at trial, opposing counsel may
then renew the objection and obtain a ruling from the
court.
7 Moore's Federal Practice, supra, at ¶30-89.
7
Rule 30(c)(2) provides in pertinent part:
An objection at the time of the examination - whether to
evidence, to a party's conduct, to the officer's
qualifications, to the manner of taking the deposition,
or to any other aspect of the deposition - must be noted
on the record, but the examination still proceeds; the
testimony is taken subject to any objection.
An
objection must be stated concisely in a nonargumentative
and nonsuggestive manner.
4
If the deponent Hack's counsel believed that defense counsel
was engaged in oppressive conduct or abusive questioning intended
to embarrass or humiliate Hack, there was a remedy available under
Rule 30(d)(3).8
Under this rule, a deponent "may move to terminate
or limit a deposition on the ground that it is being conducted in
bad faith or in a manner that unreasonably annoys, embarrasses or
oppresses the deponent . . . ."
As indicated, the deponent did not
avail himself of this remedy.
Even if the court could construe Hack's argument to be that
defendants' inquiry was so far afield as to cause unreasonable
annoyance, embarrassment or oppression pursuant to Rule 30(d), the
record before the court is simply too anemic to furnish a context
or provide adequate information regarding the disputed query.9
In
8
In addition, before the deposition, if counsel suspected that
the inquiry would be objectionable, he could have moved for a
protective order under Rule 26(c).
Furthermore, during the
deposition, counsel for the deponent could have contacted the court
"or moved for an order pursuant to Rule 30(d) . . . . If he had
exercised either of these options, he would have been acting as
provided in the Rules. But instructing the witness[] not to answer
is not a proper choice of remedy under the Rules, except when
questions call for disclosure of trade secrets or privileged
information." Am. Hangar, Inc. v. Basic Line, Inc., 105 F.R.D.
173, 177 (D. Mass. 1985).
9
"To obtain a protective order under Rule 30(d), the moving
party has the burden of proving that the examination was being
conducted in bad faith or in such a manner as to unreasonably
annoy, embarrass, or oppress the deponent or a party." In re
Omeprazole Patent Litig., No. M-21-81(BSJ), 2005 WL 818821, at *2
(S.D.N.Y. Feb. 18, 2005), aff'd, 227 F.R.D. 227 (S.D.N.Y. 2005).
"A lawyer who believes that his opponent's question is so
oppressive as to require judicial intervention needs to clarify the
record to the greatest extent possible so that the court, which has
not attended the deposition and has not observed its atmosphere,
5
other words, given the state of the record, the court is unable to
determine where the question was headed, whether it was asked for
an improper purpose or why it might be inappropriate.
Hack has not
shouldered his burden of showing that he is entitled to relief
under Rule 30(d)(3) so must respond to the question.10
C.
Hack's conversation with nonparty Rabbi David Hillel
The
defendants
next
move
to
compel
Hack
to
respond
to
questions regarding his conversations with his rabbi, nonparty
Rabbi Hillel David.11
Hack's attorney objected to the inquiry on
the grounds of the clergy-penitent privilege.12
The relevant
can reach an informed conclusion." 3 Robert L. Haig, Business and
Commercial Litigation in the Federal Courts § 24:62 (4th ed.).
10
The court, of course, cannot opine regarding questions that
might arise from the deponent's response. Counsel, as officers of
the court, must be guided by their experience, good judgment and
the strictures of Rule 26. As one district court has observed:
The deposition process is dependent upon the
professionalism of counsel as they voluntarily comply
with Fed. R. Civ. P 30. It requires counsel to cooperate
with each other and with the deponents. The court is not
present during the deposition to rule on objections or to
enforce the rules. When counsel obstructs the process,
there is not only a violation of the rules but there is
an adverse reflection on the legal profession in the eyes
of the witnesses whose most significant contact with
attorneys may [be] through taking his or her deposition.
Ferguson v. N. Broward Hosp. Dist., No. 10-61606-CIV, 2011 WL
1496771, at *1-2 (S.D. Fla. Apr. 19, 2011).
11
The deponent Hack also is a rabbi.
12
The privilege, which is based on Connecticut state law, comes
into play because this is a diversity case. See Application of Am.
Tobacco Co., 880 F.2d 1520, 1527 (2d Cir. 1989)("the existence of
a privilege is to be determined by reference to state law."); Fed.
R. Evid. 501.
6
exchange is as follows:
Defense counsel:
Hack's counsel:
Hack:
Defense counsel:
Hack's counsel:
Did you consult with [Rabbi David] on
this matter [of the lawsuit]?
Without waiving the objection, you
can answer the question.
Yes, I did.
When?
Objection.
(Tr. 7/25/16 at 78-79.)
"The clergy-penitent privilege did not exist at common law,
and is a creature of statute."
597 (2011).
State v. Mark R., 300 Conn. 590,
It is codified at Conn. Gen. Stat. § 52-146b, which
provides:
A clergyman, priest, minister, rabbi or practitioner of
any religious denomination accredited by the religious
body to which he belongs who is settled in the work of
the
ministry
shall
not
disclose
confidential
communications made to him in his professional capacity
in any civil or criminal case or proceedings preliminary
thereto, or in any legislative or administrative
proceeding, unless the person making the confidential
communication waives such privilege herein provided.
The privilege applies "only to communications involving religious
or spiritual advice, aid or comfort."
Thopsey v. Bridgeport Roman
Catholic Diocesan Corp., No. NNHCV106009360S, 2012 WL 695624, at
*9-10 (Conn. Super. Ct. Feb. 15, 2012).
For the privilege to apply, a penitent must demonstrate:
(1) there was a communication; (2) the communication was
confidential; (3) it was made to a member of the clergy
within the meaning of the statute; (4) the communication
was made to the clergy member in his or her professional
capacity; (5) the disclosure was sought as part of a
criminal or civil case; and (6) the defendant did not
waive the privilege.
7
State v. Mark R., 300 Conn. 590, 597-98 (2011).
The party
asserting the privilege bears the burden of establishing each
element of the privilege.
The
defendants
asserted.
Id. at 598.
argue
that
the
objection
was
prematurely
Hack's counsel responds that further inquiry would be
futile because all of Hack's communications with Rabbi David
involved
religious
or
spiritual
advice
and
therefore
are
privileged.
Here again, the record is poorly developed. Aside from saying
that Rabbi David is the deponent's rabbi, counsel have given the
court no information to place the dispute in context.
In any
event, the court's careful review of the deposition reveals that at
least some of Hack's conversations with Rabbi David were not
privileged.
For example, Hack testified that he spoke with Rabbi
David regarding a staff member's request for time off. (Hack Dep.
7/29/16 at 77-78.)
Hack also had a discussion with Rabbi David
regarding the school's management and employees. (Hack Dep. 8/2/16
at 23-24.)
On the record before the court, Hack has not met his burden of
establishing the facts essential to support the asserted privilege.
The motion to compel Hack to respond to the query at issue is
granted.
III. Conclusion
Having concluded that Hack must respond to the disputed
8
questions, the court pauses to offer some direction.
If the
deposition is resumed, counsel for the deponent must allow him to
answer all questions, absent a claim of privilege, unless counsel
seeks appropriate relief under the federal rules.
In the event
that an objection is asserted based on privilege, "the normal
practice is to allow a deposition to go forward and have the
parties complete as much of it as possible . . . ."
Ceslik v.
Miller Ford, Inc., No. 3:04CV2045(AWT)(DFM), 2007 WL 1794097, at *2
(D. Conn. June 19, 2007).
Counsel should proceed to make a
complete record by exploring the specific factual basis for the
assertion of privilege. "When a privilege is claimed, the deponent
must answer questions relevant to the existence, extent and/or
waiver of the privilege, including questions addressing the date of
privileged communication, who made the privileged communication,
and the identity of persons to whom the contents of the statement
have been disclosed."
Greer v. Mehiel, No. 15CV6119, 2017 WL
543453, at *4 (S.D.N.Y. Feb. 10, 2017).
In short, the record must
be sufficiently developed to permit counsel - and if need be, the
court - to assess the validity of the objection.
SO ORDERED at Hartford, Connecticut this 17th day of April,
2017.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge
9
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