Liverpool v. Cleveland et al

Filing 60

MEMORANDUM AND ORDER: Because the defendants' counsel improperly directed defendant Reiman not to answer appropriate questions at his deposition, I grant the plaintiff's motion to compel. The parties will promptly arrange for defendant Reiman's continued deposition. Ordered by Magistrate Judge James Orenstein on 3/27/2018. (Orenstein, James)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTON F. LIVERPOOL,
Plaintiff,
- against REGGIE CLEVELAND, et al.,
Defendants.
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MEMORANDUM
AND ORDER
17-CV-1995 (AMD) (JO)

James Orenstein, Magistrate Judge:
Plaintiff pro se Anton Liverpool ("Liverpool") seeks to compel defendant Sgt. Edward
Reiman ("Reiman") to answer questions that his counsel directed him not to answer at his
deposition. At a conference on March 20, 2018, I asked counsel to submit the deposition transcript
to allow me to resolve the matter. See Docket Entry ("DE") 55. After reviewing the transcript, DE
59 ("Tr."), I now grant the motion. As set forth below, the defendants' counsel improperly directed
Reiman not to answer questions on two occasions.
First, the defendants' counsel improperly instructed Reiman not to answer questions about
general procedures:
Q. You were not at the scene, but you were at the 104th Precinct. Do you have any
information about an officer being at the scene or any officers on the scene, whether
from the 104th Precinct or from any other precinct?
A. I don't recall.
Q. Basically, I would like to ask you, as a sergeant in the 104th Precinct, like at the
time, you were a sergeant, October 15, 2014, right? I'm correct?
A. Yes.
Q. As a sergeant in the precinct, when the average complaint comes in, what – what
role or what part do you play in a complaint that comes to the 104th Precinct
concerning somebody in the area?
[COUNSEL]: Objection. This is a hypothetical question. I will direct him not to
answer a hypothetical. If you want to ask him a specific question, go ahead, but this
is a hypothetical.

Tr. at 17.
"A person may instruct a deponent not to answer only when necessary to preserve a
privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)."
Fed. R. Civ. P. 30(c)(2). Even if counsel were correct that Liverpool's question was hypothetical –
which it was not – that would not have been a permissible reason to direct the witness not to
answer. Instead, counsel could and should have simply lodged an objection and permitted the
witness to answer. Id.
The second instance of improper direction not to answer was more egregious. Liverpool
sought to question Reiman about the source of information that formed the basis for Liverpool's
arrest. In particular, after Reiman testified that an agent had reported to him that Liverpool had
exposed himself and had used the word "mother" in that regard, Liverpool sought to clarify whether
the agents report had referred to one "mother" or more than one. Counsel never permitted Reiman
to answer that question, and instead interrupted Liverpool's attempt to explain his question and
incorrectly accused Liverpool of harassing her client:
Q. You are saying that the school safety officers didn't relate any of this information
to you in any way?
A. I don't recall. I don't recall that being related in a phone conversation.
Q. You said, again, that he gave you the impression that a mother was the victim of
this crime, a mother?
A. I remember that I was under the impression that you were – you exposed yourself
to a mother. I asked him if they had the complainant. The agent said no. And I asked
him did you – did you see Mr. Liverpool, you, do this, and they responded yes.
Q. They or –
A. The agent. I asked the agent did you see – if they didn't have a complainant, then
was the agent the complainant? So I asked him did you see this act, whatever you
were doing, and he responded yes.
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Q. But you don't know what made you think that this was a mother?
A. The way I remember –
Q. You don't know how he impressed that upon you?
A. The way I remember, I remember a mother, a mother being brought up in the
conversation.
Q. Okay. So he used the word mother is what you are saying?
A. That's – I remember the word in the conversation.
Q. Concerning me exposing myself to a mother.
A. Is that a question?
Q. Yes.
A. I told you, I was under the impression from what he was explaining to me that
you were exposing yourself to a mother or some kind of lewd act.
Q. I'm trying to get what impressed this upon you. Did he use the word mother
concerning me exposing myself –
A. I remember –
Q. – or mothers with an S?
[COUNSEL]: Mr. Liverpool, you've asked and he's answered the question. I will ask
that you move on from this line of questioning. You are borderline harassing my
client?
MR. LIVERPOOL: I am just trying to be clear on what was conveyed to him.
[COUNSEL]: And he told you – he's told what he remembers from the
conversation.
MR. LIVERPOOL: Yes. But if you let me finish explaining, probably I'll gather what
I'm trying to get.
[COUNSEL]: He's repeated his answer a number of times.
MR. LIVERPOOL: I'm trying –
[COUNSEL]: He's repeated his answer a number of times. If you have a different
question to ask, ask a different question.
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MR. LIVERPOOL: Well, he really has not answered my question sufficiently.
[COUNSEL]: You may not like the answer.
MR. LIVERPOOL: It's not that I don't like the question. If he's not giving me
enough information or he does not have enough information from the person he
spoke to. I'm trying to get at is this –
[COUNSEL]: Mr. Liverpool. Mr. Liverpool. If you don't like the answer that he's
giving you, then that's not – that's not the –
MR. LIVERPOOL: I have no problem with his answer. I'm trying to ask in a
different way so I can understand – he can understand what I'm trying to – what I'm
trying to get from him. He could relate properly. It's either -- he's saying that this
person was impressed upon him as being a mother. It's either the school safety
officer related this to him, that it was a mother, it was several mothers and it was one
out of several mothers. That's what I'm trying to get at.
[COUNSEL]: He's told you what he remembers about the conversation. If you have
a different way of rephrasing your question or asking another question, then by all
means ask that question.
MR. LIVERPOOL: That's what I was in the process of doing when you interrupted
me.
[COUNSEL]: You were asking the same question again. If you want to ask a
different question –
MR. LIVERPOOL: I couldn't ask the same way. I was rephrasing it. If he got to
listen it, he would have known. He would have realized I was asking it a different
way, a different context.
[COUNSEL]: If you have another question to ask, by all means, please go ahead and
ask another question.
MR. LIVERPOOL: I have another question to ask, but it's around – it's basically
surrounding the same subject matter.
[COUNSEL]: Go ahead. Ask your question.
MR. LIVERPOOL: Okay.
Q. Mr. Reiman, so the school safety officer spoke to you on the phone, right? He
stated that I was exposing myself to a mother in more or less words. You don't
remember the specific, but, basically, that's what he was saying, a mother?
A. I remember –
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[COUNSEL]: Objection. He has answered this question already. He's repeatedly
answered it move on.
A. Would you like to answer the question?
[COUNSEL]: Mr. Liverpool, move on. He's not answering the question. You are
harassing my client.
Q. You are not answering the question?
[COUNSEL]: I'm his attorney. I am telling you he's not answering the question.
Move on.
MR. LIVERPOOL: Okay. Thank you.
Q. Did the school safety officer state that there were several mothers in the area or
just this one mother?
[COUNSEL]: Mr. Liverpool, I'm objecting to your question and telling you he is not
–
MR. LIVERPOOL: This is a whole different question. If he does not want to
answer, that's what he got to say.
Q. Were there several mothers –
[COUNSEL]: Mr. Liverpool, I'm his attorney, and I'm directing him not to answer.
You are harassing my client. He's already answered this line of questioning numerous
times. I'm telling you to move on from this line of questioning.
Tr. at 37-42.
Liverpool did not harass Reiman, and Reiman did not answer Liverpool's question about
whether it was one "mother" or more than one who had reportedly observed his conduct – not even
once, let alone the "numerous times" about which counsel complained. In any event, while "asked
and answered" is of course a permissible objection, it is not a basis for directing a witness not to
answer a question. Fed. R. Civ. P. 30(c)(2).

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Because the defendants' counsel improperly directed defendant Reiman not to answer
appropriate questions at his deposition, I grant the plaintiff's motion to compel. The parties will
promptly arrange for defendant Reiman's continued deposition.
SO ORDERED.
Dated: Brooklyn, New York
March 27, 2018

_
/s/
James Orenstein
U.S. Magistrate Judge

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