CRESCI et al v. AQUINO et al

Filing 127

ORDERED that Plaintiff shall conduct the depositions of Hernandez and Carroll at the Federal Courthouse in Newark, NJ. Plaintiff shall contact the court to reserve a suitable room. Signed by Magistrate Judge James B. Clark on 6/4/2019. (as, )

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State of New Jersey
PHILIP D. MURPHY
Governor

OFFICE OF THE ATTORNEY GENERJ.
DEPTMExT OF LAW AND PUBLIC SAFETY

SHEILA Y. OLIVER
Li. Governor

25 MARKET STREET

GuRBIR S. GREwAL
Attorney General

DIVISION OF LAW
MICHELLE L. MILLER
Director

P0 Box 116
TRENToN. NJ 08625-0116

June 3,2019
Via Electronic Filing
Hon. James B. Clark, III, U.S.M.J
United States District Court District of New Jersey
Martin Luther King Blvd. & U.S. Courthouse
50 Walnut Street
Newark, NJ 07101
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Re: Cresci v. Aguino, et al.
2: 13-CV-04695
DOL# 18-63 104
Dear Judge Clark:
I represent non-party witnesses Assistant Prosecutor Hernandez and former Assistant
Prosecutor CalToll. I am writing to request the Court’s

intervention

in

a

dispute regarding the

location of depositions of my clients. Specifically, my clients request that the Court order that their
depositions take place in the offices of the Hudson County Counsel.
I have been in communication with all counsel and pro se Plaintiff (who is trained as an
attorney) regarding the depositions of my clients for some time now. I received a subpoena for Mr.
Carroll in early May. On May 22, 2019, I advised all counsel and Plaintiff that Mr. Hernandez
waived the need for a subpoena and began working with the parties to schedule my clients’
depositions. Plaintiff advised the he was amenable to depositions on June 13, 2019. On Friday,
May31, 2019, 1 c-mailed Plaintiff and advised that “[m]y clients would like to have their depositions

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June 3, 2019
Page 2
taken in the offices of the Hudson County Counsel. I’m certain that, in the spirit of good faith, you
will find this acceptable.” Plaintiff responded by advising me that “[w]e will take the depositions
JAW with R.30 at 911 Kennedy Blvd, Bayonne on June 13, 2019.”
In response, I conducted a search on Google to glean some information about this address. It
appears to be a private residence. I have also been informed that Plaintiff’s deposition was
conducted at this location and that counsel found the surroundings unconducive for this formal
proceeding. I therefore reached out to Plaintiff and asked him to reconsider the location. He has
refused.
I do not believe it is appropriate to subject my clients to a deposition in a private residence,
an inherently unprofessional environment, especially when other attorneys who have visited the
location report that it lacks basic amenities.
The Federal Rules of Civil Procedure do not articulate a specific place where depositions are
to occur. “Rather, pursuant to Rule 26(c)( 1) & (2), the court has broad discretion to alter the place of
a noticed deposition, upon good cause shown, to protect a party from undue burden or expense.”
Brockway v. Veterans Admin. Healthcare Svs., No. 3:10-CV-719, 2011 WL 1459592, at *5 (D.

Conn. Apr. 15, 2011) (citing Buzzeo v. Board of Edtc., Hempstead, 178 F.R.D. 390, 392
(E.D.N.Y.1998)). See also Reid v. Temple Univ. Hosp., inc., 329 F.R.D. 531, 532—33 (E.D. Pa.
2019)Although the party seeking the deposition may usually select the location, that practice is not
absolute. “[T]he district court, either through the magistrate or the district judge. has great discretion
in designating the location of the taking of a deposition

.

.

.

and thus each application must be

considered on its own facts and equities.” S. Seas Catamaran, Inc. v. Motor Vessel Leeway, 120
F.R.D. 17, 21 (D.N.J. 1988), affdsub

nom.

S. Seas Catamaran v. Motor Vessel Leeway, 993 F.2d

-

June 3, 2019
Page 3
878 (3d Cir. 1993) (citing Thompson v. Sun Oil Company, 523 F.2d 647, 650 (8th Cir.1975), and
Terry v. Modern Woodinen ofAmerica, 57 F.R.D. 141, 143 (W.D.MO 1972)).
Courts consider three facts in considering questions such as this: the cost, convenience, and
litigation efficiency of the designated location. Brockwav, 2011 WL 1459592, at *5 (citing Sloniger
v. Deja, No. 09—CV—858S, 2010 WL 5343184, at *5 (W.D.N.Y. Dec.20, 2010)). The analysis
conducted by the Broclcwav court of these facts is particularly applicable here. There, any costs
incurred by the plaintiff for minimal travel was deemed modest and, critically, appropriately borne
by the plaintiff because was the one who brought the action. Brockwav, 2011 WL 1459592, at *6.
Similarly, the distance between the location selected by plaintiff and the office identified by my
clients is minimal. Any minimal costs in the form of travel would be more appropriately borne by
the plaintiff than the non-party witnesses.
Next, “[f]actors relevant to convenience include convenience of counsel, the
[Plaintiff’s] residence, and the extent to which [Plaintiff’s} affairs will be disrupted
to and from the depositions.” [Dagen v. CFC Grp. Holdings Ltd., No. 00 CIV. 5682
(CBM), 2003 WL21910861, at *3 (S.D.N.Y. Aug. 11,2003)]; [Mill-Run Tours, Inc.
v. Khashoggi, 124 F.R.D. 547, 550 (S.D.N.Y. 1989)]. In the case at bar, the [County
Counsel’s Office] is convenient to all parties concerned and especially [the non-party
witnesses].
[A]ll counsel, witnesses, and parties may travel easily to the site,
experiencing no undue interruption or inconvenience in their schedules. Granted,
plaintiff will have to leave his home, but there is no indication in the record that he is
immobilized or otherwise unable to make such a brief trip.
.

.

.

Brockway, 2011 WL 1459592, at *6.
As to litigation efficiency, a professional environment is far more conducive to this. There
will be photocopy machines to copy documents if any are needed, there will be space for counsel to
confer with their clients, and a conference system to call the Court if ad hoc intervention is
necessary. See id.
Accordingly, non-party witnesses Hernandez and Carroll ask this Honorable Court to issue
an order mandating that their depositions be conducted in the offices of the Hudson County Counsel.

June 3, 2019
Page 4
Thank you for your kind attention to this matter. I note that, if the Court is unable to rule on
this in the coming days I expect that we will need to adjourn the depositions to a later date.

Respectfully yours,
GURBIR S. GREWAL
ATTORNEY GENERAL OF NEW JERSEY
By: Is! Shrnuel Bushwick
Shmuel Bushwick
Deputy Attorney General

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REGULAR AND CERTIFIED OR OVERNIGHT MAIL TO PRO SE PARTY
cc:

Peter Cresci, Esq.
Michael Sarno, DAG
Michael Dermody, Esq.

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O ORDERED

s/James B. Clark

—

James B. Clark, U.S.M.J

Date:

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