Othon v. Wesleyan University

Filing 121

ORDER. For the reasons set forth in the attached order, the Motion for Protective Order (Doc. # 110 ) is DENIED. Plaintiff shall appear for the re-noticed deposition on Thursday, June 13, 2019. On or before June 27, 2019, defendant may file a motion for any fees and costs associated with rescheduling the deposition, including an itemization of such expenses. Plaintiff may file a response on or before July 10, 2019. Signed by Judge Sarah A. L. Merriam on 6/4/19. (Dowie, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
CHRISTINE OTHON
:
:
v.
:
:
WESLEYAN UNIVERSITY
:
:
------------------------------x

Civ. No. 3:18CV00958(KAD)

June 4, 2019

ORDER RE: MOTION FOR PROTECTIVE ORDER
On May 30, 2019, plaintiff Christine Othon filed a Motion
for Protective Order and Costs. [Doc. #110] Plaintiff seeks to
postpone her deposition, which has been noticed for June 6, 2019,
to a later date. Plaintiff argues that the deposition should be
delayed because: (1) defendant has not fully complied with the
Initial Discovery Protocols, see Doc. #110 at 1; (2) plaintiff is
not available on June 6, 2019, see Doc. #110-1 at 7; (3)
plaintiff has not made travel arrangements to appear for her
deposition, see Doc. #110-1 at 9-10; (4) defendant may engage in
“deposition by ambush,” Doc. #110-1 at 10-11; and (5) defendant
has not filed an Answer to the Amended Complaint, see Doc. #110-1
at 13-14. Defendant has filed an opposition to the motion, see
Doc. #113, and plaintiff has filed a reply, see Doc. #114. The
Court conducted a telephonic hearing on the instant motion on
June 3, 2019, at which counsel for each party appeared. For the
reasons set forth herein, the Court DENIES plaintiff’s Motion for
Protective Order.
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I.

BACKGROUND
The Court will not recount the full procedural background of

this matter here, but will focus only on those matters directly
relevant to its decision. The discovery process in this case has
been unusually (and, it seems to the undersigned, unnecessarily)
contentious. There are currently four motions to compel pending,
all of which have been referred to the undersigned. See Doc. #80.
The Court issued an order discussing some of the matters raised
in those motions on for June 3, 2019. See Doc. #118.
This case was filed on June 7, 2018. See Doc. #1. The 26(f)
Report was filed on August 30, 2018. See Doc. #14. In that
report, the parties requested a deadline of April 30, 2019, for
the completion of all discovery, including depositions of fact
witnesses. See id. at 4. The discovery deadline was later reset
to July 14, 2019, see Doc. #37, and then again to August 14,
2019, see Doc. #45, and yet again to September 29, 2019, see Doc.
#77. The parties then filed a fourth motion to modify the
scheduling order and further delay the completion of discovery
pending resolution of at least one issue raised in the pending
motions to compel. See Doc. #96. The Court granted that motion.
See Doc. #99.
Defendant originally noticed the deposition of the plaintiff
for February 14, 2019. See Doc. #113-2 at 4. The parties agreed
to reschedule the deposition to a later date, and defense counsel
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proposed June 4 or June 6, 2019. See Doc. #113-4 at 3. On April
2, 2019, plaintiff’s counsel stated in an email: “My client and I
are holding June 6.” Doc. #113-4 at 2. Defendant then noticed
plaintiff’s deposition for June 6, 2019. See Doc. 113-1 at 3.
On April 17, 2019, plaintiff’s counsel sent an email to
defense counsel stating: “Plaintiff is not available on June 6.”
Doc. #110-1 at 7. Counsel then exchanged emails in which defense
counsel stated that they intended to go forward with the
deposition on June 6, 2019, as scheduled, and plaintiff’s counsel
declined to provide detailed information regarding her client’s
unavailability on that date. See Doc. #110-3. It does not appear
that counsel engaged in any further discussions regarding the
deposition date. Notably, the documents provided to the Court
reflect only email discussions of this issue; there is no
indication that counsel ever discussed the matter of the June 6,
2019, date by telephone or in person.
In the course of reviewing the motions to compel, the
undersigned noted that the defendant had made repeated passing
references to an ongoing dispute related to plaintiff’s
deposition. However, no motion addressed to the deposition had
been filed. Therefore, in an effort to ensure that all parties
understood that the issue of the deposition was not before the
Court, the Court entered the following Order on May 9, 2019:
ORDER. Defendant, in multiple filings, has expressed
concern regarding plaintiff’s attendance at a deposition
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scheduled for June 6, 2019, at 10:00AM. See Doc. #78 at
1 (“Plaintiff's counsel’s recent email communication,
attached as Exhibit A, shows an outright refusal by
Plaintiff to sit for her deposition, despite previous
agreement to do so and a pending deposition notice.
Therefore, as part of the relief on its Motion to Compel,
Defendant requests an order that Plaintiff appear for her
deposition on June 6, 2019, as noticed.”); Doc. #78-2 at
2 (“Re-Notice of Deposition” stating: “Defendant will
take the deposition of CHRISTINA OTHON” “on June 6, 2019
at 10:00 a.m.”); Doc. #88 at 1 n.1 (“Although a response
to Plaintiff’s Motion for Reconsideration is not required
by Local Rule 7(c) unless requested by the Court,
Wesleyan submits this brief opposition in order to
address Plaintiff’s continued refusal to sit for her
deposition, which has been noticed for June 6, 2019. In
its Reply in further support of its Motion to Compel [ECF
No. 78], Defendant has explicitly asked for the Court to
compel Plaintiff to attend her deposition on June 6,
2019.”); Doc. #93 at 1 (“Defendant’s consent [to an
extension of a deadline] does not change its position
that Plaintiff’s deposition should proceed on June 6,
2019.”).
Neither a motion to compel, nor a motion for a protective
order, specifically addressed to plaintiff's deposition
has been filed or granted in this case. Accordingly, the
Court presumes that any duly noticed deposition will go
forward in the ordinary course of business. It is so
ordered.
Doc. #95 (emphasis in original).
On May 30, 2019, plaintiff filed the instant motion for
protective order. On that same date, upon review of plaintiff’s
submission, the Court issued the following Order:
ORDER. On May 9, 2019, exactly three weeks ago, this
Court entered an order expressly advising all counsel
that the Court expected the plaintiff’s deposition to go
forward on June 6, 2019, as scheduled unless a motion for
protective order was filed and granted. See Doc. #95. In
spite of that order, plaintiff’s counsel now represents
that plaintiff has no plans to attend the deposition and
has not made travel arrangements. See Doc. # 110-1 at 8.
The deposition at issue was noticed on April 2, 2019. The
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correspondence
regarding
that
date
provided
by
plaintiff’s counsel with the motion for protective order
appears to have been exchanged in mid-April. There is no
indication in plaintiff’s motion that counsel has made
any effort to address this issue since the Court’s May
9, 2019, order. Accordingly, plaintiff is hereby ordered
to file a supplemental memorandum in support of the
motion for protective order indicating (1) whether
counsel has attempted to address this issue with defense
counsel since May 9, 2019, and (2) whether counsel
instructed plaintiff that plaintiff need not appear for
the deposition, prior to the filing of the motion for
protective order. Such supplemental memorandum shall be
filed before 12:00 p.m. on May 31, 2019. It is so ordered.
Doc. #112 (emphasis in original). Plaintiff filed a response
addressing the Court’s first inquiry, stating that counsel
did not attempt to address the issue with defense counsel
after the May 9, 2019 Order because 1) Plaintiff’s prior
efforts to reschedule the deposition date were rejected
by Defense counsel (See Memorandum of Law supporting
Motion for Protective Order and discussions of April
communications and Exhibit B); 2) Plaintiff’s counsel
understood from the Court’s May 9 Order that she had to
file a Motion for Protective Order in order to address
the June 6 deposition date (See May 9 Order); and 3) the
Court’s May 9 Order was based on incomplete and
inaccurate
representations
from
the
Defendant
in
submissions related to written discovery and not
plaintiff’s deposition.
Doc. #115 at 1. Plaintiff did not respond to the Court’s second
inquiry regarding counsel’s instructions to plaintiff. The Court
conducted a hearing on June 3, 2019. At that time, the Court
again inquired of plaintiff’s counsel what instructions she had
provided to her client. Plaintiff’s counsel advised the Court, in
substance, that counsel had advised plaintiff that the issue of
rescheduling would need to be addressed by the Court. Counsel
further explained that she advised plaintiff that she, counsel,
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would tell plaintiff when she needed to secure plane tickets for
the purpose of attending her deposition, and had not yet told
plaintiff to do so.
II.

LEGAL STANDARD
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets

forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
2009).
Pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure, “[t]he court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense[.]” Fed. R. Civ. P.
26(c)(1). “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.” Seattle Times Co. v. Rhinehart, 467
U.S. 20, 36 (1984). “That said, a court may issue a protective
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order only after the moving party demonstrates good cause.”
Joseph L. v. Conn. Dept. of Children & Families, 225 F.R.D. 400,
402 (D. Conn. 2005); see also Dove v. Atl. Capital Corp., 963
F.2d 15, 19 (2d Cir. 1992).
“To establish good cause under Rule 26(c), courts require a
particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements.” Jerolimo v.
Physicians for Women, P.C., 238 F.R.D. 354, 356 (D. Conn. 2006)
(internal quotation marks and citations omitted). Good cause
exists when allowing the discovery sought will result in a
“clearly defined and serious injury to the party seeking the
protective order.” Bernstein v. Mafcote, Inc., 43 F. Supp. 3d
109, 113 (D. Conn. 2014) (internal quotation marks and citations
omitted). “Broad allegations of harm, unsubstantiated by specific
examples or articulated reasoning, are insufficient for a good
cause showing.” Id. (internal quotation marks and citations
omitted).
Rule 26(c)(1) requires any motion for protective order to
“include a certification that the movant has in good faith
conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without court action.” Fed. R.
Civ. P. 26(c)(1). The Local Rules for the District of Connecticut
further require:
No motion pursuant to Rules 26 through 37, Fed. R. Civ.
P. shall be filed unless counsel making the motion has
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conferred, in person or
counsel and discussed the
in detail in a good faith
the area of controversy,
satisfactory resolution.

by telephone, with opposing
discovery issues between them
effort to eliminate or reduce
and to arrive at a mutually

D. Conn. L. Civ. R. 37(a) (emphasis added).
III. DISCUSSION
A.

Failure to Comply with the Rules of Civil Procedure

Plaintiff’s counsel has filed an affidavit along with the
motion for protective order asserting: “I provide this Affidavit
... in compliance with the Federal Rules of Civil Procedure and
Local Rules for the District of Connecticut. I certify that I
have conferred with defendant’s counsel in an effort to resolve
by agreement the issues raised by this Motion for Protective
Order[.]” Doc. #110-4 at 1. It does not appear from the materials
presented to the Court, however, that counsel in fact conferred
“in person or by telephone” as required by the Local Rules.
Furthermore, plaintiff’s counsel concedes that she made no effort
to address this dispute with defendant’s counsel after the
exchange of emails in mid-April. See Doc. #115 at 1. Neither the
letter of the Local Rule nor the spirit of the Local and Federal
Rules has been honored.
Failure to comply with the procedural requirements of
Federal Rule 26(c)(1) and Local Rule 37(a) is sufficient grounds
to deny a motion for protective order. “A party may seek the
assistance of the Court to resolve a discovery dispute only after
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[s]he has complied with the provisions of Rule 37(a) of
the Local Rules of Civil Procedure for the District of
Connecticut.” Stiggle v. Arnone, No. 3:13CV00238(JAM), 2014 WL
4230919, at *5 (D. Conn. Aug. 26, 2014). “As the [movant] has not
complied with the Local Rules, the motion [for protective order]
is DENIED.” Rosenbaum v. Farr, No. 3:11CV1994(AVC)(TPS), 2013 WL
6860102, at *1 (D. Conn. Dec. 30, 2013).
Here, counsel chose not to make any meaningful effort to
resolve the dispute, and then failed to seek Court intervention
in a timely fashion. The import of these choices is informed by
the fact that the Court carefully advised all parties on May 9,
2019 -- four weeks before the deposition date -- that the Court
expected the deposition to go forward unless a motion for
protective order was both filed and granted before the scheduled
date. See Doc. #95. This deposition was noticed two months in
advance. Plaintiff nonetheless waited until seven days before the
deposition date to file an appropriate motion.
Furthermore, it is apparent from plaintiff’s own submissions
that she made a conscious decision not to attend the duly-noticed
deposition before she sought -- much less received -- relief from
the Court. See Doc. #110-1 at 9 (“Plaintiff Does Not Have Flights
and She Is Unavailable”); id. at 8 (“Plaintiff is not available
on June 6, She does not have a flight booked for travel to
Connecticut from Wisconsin.”). This attempt to, in effect,
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unilaterally cancel the deposition was improper. See, e.g.,
Rodriguez v. Pataki, 293 F. Supp. 2d 305, 309 (S.D.N.Y. Sept. 2,
2003), aff’d, 293 F. Supp. 2d 315 (2003) (“[T]he defendants chose
to cancel the Burgeson deposition without consulting the Court.
... [T]here was no legitimate basis for that decision[.]”);
Alabi-Isama v. Saint Vincent Catholic Med. Centers, No.
1:07CV2107(NGG)(LB), 2009 WL 10706279, at *3 (E.D.N.Y. June 2,
2009) (“Plaintiff refused to appear for deposition because she
wanted to get information from the Defendant first, a position
that Judge Bloom explained offered no justification.”); cf.
Hussein v. Pitta, No. 1:88CV2549(TPG), 1991 WL 221033, at *3
(S.D.N.Y. Oct. 11, 1991), aff’d, 962 F.2d 3 (2d Cir. 1992) (Case
dismissed due to misconduct of plaintiff including that plaintiff
“‘cancelled’ the deposition. He did this unilaterally without the
consent of defendants or the court.”).
Plaintiff delayed until only one week before the deposition
to seek relief, and did so after deciding, unilaterally, not to
attend that deposition. “Given the Court’s broad discretion over
protective orders, this conduct is also sufficient to deny the
motion.” Trella v. Wal-Mart Stores, Inc., No. 3:15CV01211(AWT),
2017 WL 5160686, at *3 (D. Conn. Nov. 7, 2017); see also Dove,
963 F.2d at 20 (“[T]he grant or denial of a protective order lies
within the sound discretion of the district court.”).

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B.

Good Cause

Plaintiff’s motion would be denied on the merits, even if it
had been filed timely, and in full compliance with the Federal
and Local rules. Plaintiff bears the burden of establishing good
cause for issuance of a protective order. See Joseph L., 225
F.R.D. at 402; see also Dove, 963 F.2d at 19.
Plaintiff’s arguments in support of her motion fall into
three categories: (1) she is not available and has not made
travel plans; (2) defendant has not fully complied with the
Initial Discovery Protocols, raising the possibility that
defendant will attempt to “ambush” plaintiff with some document
that should have been disclosed at that point but was not; and
(3) defendant has not filed an Answer to the Amended Complaint.
As to the first category, that plaintiff is “unavailable”
and has not made plans to appear for her deposition, the Court
finds this claim unpersuasive. If plaintiff had a pressing
commitment1 on June 6, 2019, and was unable to persuade defendant

The Court notes that plaintiff has asserted in reply, for the
first time, that the reason for her “unavailability” is that her
husband is unable to care for her children on June 6, 2019. See
Doc. #114 at 3. The Court is genuinely confused as to why
plaintiff refused to disclose this issue -- which does not
implicate any particularly private matters -- earlier, if it is
in fact the reason that she is “unavailable.” But the fact
remains that plaintiff has had two months to make child care
arrangements; to explain her dilemma to defense counsel in the
hopes that rescheduling the deposition would be possible; or to
seek relief from the Court. Plaintiff elected to do none of these
things until one week before the deposition. Further, at the June
1

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to reschedule the deposition, she should have sought relief
immediately. Instead of doing so, she simply declared that she
would not attend. This does not constitute good cause.
As to the second category, the Court is similarly
unpersuaded. The only remaining dispute regarding defendant’s
compliance with the Initial Discovery Protocols essentially boils
down to a question of whether proper ESI search terms were used
to identify the responsive materials. Defendant has supplied an
affidavit indicating that defendant’s general counsel believes
that the protocols have been satisfied, see Doc. #97, and in her
response, plaintiff argues that the specific search terms used to
produce the responses should be disclosed, see Doc. #104. The
Court has ordered defendant to disclose its search parameters on
or before June 24, 2019. See Doc. #120. The Court does not find
that the possibility that additional materials might be disclosed
after plaintiff is deposed constitutes good cause to cancel the
deposition.2

3, 2019, hearing, plaintiff’s counsel asserted that plaintiff was
also unavailable because of a conference related to her work.
Plaintiff has asserted, on several occasions: “The Court
previously directed that Plaintiff’s deposition would not occur
until defendant had fully complied with the Initial Discovery
Protocols.” Doc. #110 at 1. Judge Dooley recently issued an Order
stating, inter alia: “[T]he Court did not order or rule that the
Plaintiff’s deposition would not go forward until the Defendant
fully complied with the Initial Discovery Protocols.” Doc. #116.
Accordingly, the Court does not address this contention.
2

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The cases cited by plaintiff in her memorandum are
inapposite. One relates to issuance of third party subpoenas
without notice to opposing counsel. See Henry v. Bristol Hosp.,
Inc., No. 3:13CV00826(AVC), 2015 WL 3466807, at *5 (D. Conn. June
1, 2015). One relates to the use, in depositions, of audio
recordings of the witnesses obtained through surveillance efforts
“wholly crafted and produced by the party in interest for use
against his opponent.” Mason v. T.K. Stanley, Inc., 229 F.R.D.
533, 536 (S.D. Miss. 2005). One uses the phrase
“deposition by ambush” but provides no explanation or analysis of
the nature of the “ambush.” Holman v. Westin Hotel Southfield,
No. 2:05CV72566(DT), 2006 WL 1738240, at *4 (E.D. Mich. June 22,
2006). One arises under Mississippi state law; involves
scheduling of depositions of “six deponents for one day, twice in
a three-day period, in cities 700 miles apart, with only eight
days’ notice, in the last week of a twenty-one month discovery
period[;]” and, in any event, has been overruled due to the
differences between the relevant federal and state rules of civil
procedure. Illinois Cent. R. Co. v. Winters, 815 So. 2d 1168,
1175-76 (Miss. 2002), overruled by Cooper Tire & Rubber Co. v.
McGill, 890 So. 2d 859, 867 (Miss. 2004) (“[L]ittle reliance
should be placed on Fed. R. Civ. P. 37, or analysis thereof,
because it does not contain a provision like our Rule 37(e).”).

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In sum, none of the cases cited is on point or persuasive in
these circumstances.
To the extent plaintiff is concerned that defendant will
question her using some document that the Court later determines
should have been disclosed in connection with the protocols at
her deposition, in a manner constituting an “ambush,” counsel
will of course be free to argue that plaintiff’s responses to any
such questions should not be admissible as evidence. Plaintiff’s
concern related to the possibility that defendant may seek
consent or leave of court to depose plaintiff for more than seven
hours (the presumptive durational limit under the federal rules),
see Doc. #110 at 13, can likewise be addressed if and when such a
request is made.
Finally, the Court is not persuaded that plaintiff’s
deposition should be delayed until defendant files an Answer to
the Amended Complaint. The filing of a motion to dismiss is a
permissible way to “respond” to a complaint, and, therefore, no
answer is currently due.3 See Fed. R. Civ. P. 12(a)(4)(A)
(providing that the filing of a 12(b) motion results in the
deadline for a responsive pleading being delayed until 14 days
after the motion is resolved); O’Bar v. Borough of Naugatuck, No.
3:01CV867(PCD), 2002 WL 32500866, at *1 (D. Conn. Feb. 26, 2002)
Plaintiff filed a motion for entry of default based on
defendant’s failure to file an Answer; that motion was denied,
initially and on reconsideration. See Docs. #70, #73, #89.
3

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(“Defendants’ filing of the motion to dismiss stays the
requirement that they file a responsive pleading until ten days
after issuance of a ruling on the motion.”). Further, as
plaintiff notes in her motion, discovery is not stayed in this
case during the pendency of the motion to dismiss. See, e.g.,
Usov v. Lazar, No. 1:13CV818(RWS), 2013 WL 3199652, at *8
(S.D.N.Y. June 25, 2013) (“While discovery may in a proper case
be stayed pending the outcome of a motion to dismiss, the
issuance of a stay is by no means automatic.” (citation and
quotation marks omitted)). It is not clear why plaintiff needs to
know whether defendant agrees or disagrees with the factual
allegations of the Amended Complaint in order to provide truthful
and accurate testimony regarding her claims.
C. June 3, 2019, Telephonic Hearing
For the reasons set forth above, the Court finds that it
would be inappropriate to grant plaintiff’s motion, and,
accordingly, DENIES, the Motion for Protective Order [Doc. #110].
However, as discussed below, and during the June 3, 2019,
telephonic hearing, the Court finds that it is appropriate to
order plaintiff’s deposition to be rescheduled for June 13, 2019.
Plaintiff’s motion for protective order was filed just
before noon last Thursday, May 30, 2019, and relates to a
deposition scheduled to take place at 10:00AM this Thursday, June
6, 2019. Plaintiff currently resides in Wisconsin, and the
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deposition is to be conducted in Connecticut. Accordingly, as a
practical matter, the Court recognizes that plaintiff would
likely need to leave Wisconsin on Wednesday, June 5, 2019, to
attend her deposition and would likely need some, not
insignificant, advance notice to arrange her travel. Accordingly,
the timing of the motion filed by plaintiff’s counsel
realistically left the Court with less than four business days to
solicit and review briefing, and issue an appropriate order in
this matter. Plaintiff’s alleged conflict with the June 6, 2019,
date is not a recent development, meaning this compressed
timeframe was wholly avoidable. Following review of the parties’
submissions, at 6:53PM on Sunday, June 2, 2019, the Court
scheduled a telephonic hearing with counsel for both parties for
June 3, 2019, at 10:00AM. See Doc. #117.
At that hearing, the Court solicited further information
regarding the plaintiff’s unavailability, as well as additional
argument from the parties related to the instant motion. In light
of Attorney Heena Kapadia’s representations that plaintiff had
not made travel arrangements based on Attorney Kapadia’s
instructions, and counsel’s further representations that
plaintiff is unable to appear on June 6, 2019, the Court inquired
as to whether defendant could re-notice the deposition for a date
within the next two weeks. Defense counsel represented that,

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while burdensome,4 it would be possible to depose plaintiff on
June 13, 2019.
In recognition of the practical impact of scheduling on
plaintiff under the time constraints of this case, and the fact
that the emergency aspect of motion practice related to the
protective order resulted from the conduct of plaintiff’s
counsel, Attorney Kapadia,5 rather than plaintiff herself, the
Court offered Attorney Kapadia two options. Either plaintiff’s
deposition could go forward as scheduled on June 6, 2019, or the
Court would order defendant to re-notice plaintiff’s deposition
for June 13, 2019, and require Attorney Kapadia to compensate
defendant both for the attorney’s fees and costs associated with
defending the motion for a protective order on short notice, as
well as costs associated with rescheduling plaintiff’s
deposition. The Court, in its discretion, concludes that these
Defendant raised, for the first time in the June 3, 2019,
hearing, that the need to depose plaintiff in June is due, in
part, to the fact that defendant feels it is necessary for its
Provost to attend plaintiff’s deposition. The Provost will be
moving out of state in the near future. The Provost’s last date
of employment with defendant is June 13, 2019, and that is the
only date between now and then that the Provost could be made
available.
4

Heena Kapadia is listed as lead counsel in this case. Attorney
Kapadia represented during the June 3, 2019, telephonic hearing
that her co-counsel, Carmen Chapman, works at The Law Offices of
Heena Kapadia part-time, and that Attorney Kapadia is personally
responsible for “99%” of this case. Attorney Chapman did not
participate in the June 3, 2019, telephonic hearing. The Court
does not make any order with respect to Attorney Chapman.
5

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options strike the appropriate balance between defendant’s right
to conduct appropriate discovery, and the burden that would be
placed on plaintiff personally if she were required to arrange
travel, childcare, and potentially reschedule work obligations6
unexpectedly and on such short notice.
Plaintiff’s counsel maintained that her client could not be
made available on June 6, 2019, and elected the second option.7
At that time, the Court orally ordered defendant to re-notice
plaintiff’s deposition for June 13, 2019, and advised the parties
that a written denial of plaintiff’s motion for a protective
order would issue shortly.
IV.

CONCLUSION
For the reasons set forth herein, the Motion for Protective

Order [Doc. #110] is DENIED. Plaintiff shall appear for the renoticed deposition on Thursday, June 13, 2019.8 On or before June
Plaintiff’s counsel represented during the June 3, 2019,
telephonic hearing that, in addition to plaintiff’s inability to
secure child care to accommodate an overnight trip, that a work
obligation has also been scheduled for June 6, 2019.
6

The Court notes that similar issues, and remedies, appear to
have been considered by another judge of this district in Beamon
v. Yale New Haven Hospital Inc., No. 3:16CV181(JBA), in which the
defendant moved for sanctions and to compel the attendance of a
different client of Attorney Kapadia’s at his deposition.
7

Plaintiff is hereby advised that the Federal Rules of Civil
Procedure provide: “If the court where the discovery is taken
orders a deponent to be sworn or to answer a question and the
deponent fails to obey, the failure may be treated as contempt of
court.” Fed. R. Civ. P. 37(b)(1). Other sanctions are also
available. See Fed. R. Civ. P. 37(b)(2).
8

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27, 2019, defendant may file a motion for any fees and costs
associated with rescheduling the deposition, including an
itemization of such expenses. Plaintiff may file a response on or
before July 10, 2019.
This is an order regarding discovery which is reviewable
pursuant to the “clearly erroneous” statutory standard of review.
See 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn.
L. Civ. R. 72.2. It is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
It is so ordered, at New Haven, Connecticut, this 4th day of
June, 2019.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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