Balk v. New York Institute of Technology et al
ORDER granting 110 Motion to Compel. The Court directs Dr. Vogt to appear again for the continuation of his deposition. See attached Order for additional details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 11/19/2012. (Sofio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against CV 11-509 (JFB) (AKT)
NEW YORK INSTITUTE OF TECHNOLOGY,
A. KATHLEEN TOMLINSON, Magistrate Judge:
Plaintiff Dennis Balk (“Balk” or “Plaintiff”) moves the Court for an Order requiring nonparty witness Dr. Robert C. Vogt to appear for a second deposition to answer certain questions he
refused to answer at his September 18, 2012 deposition. DE 110. Defendants New York
Institute of Technology (“NYIT”) and Infotec Corporation (“Infotec”) did not submit any
opposition, nor did Dr. Vogt.
This case centers around allegations that while teaching at NYIT’s campus in Bahrain,
Plaintiff was subjected to discriminatory conduct directed at non-Muslim faculty. See Am.
Compl. Plaintiff does not specify who Dr. Vogt is in his motion. According to another motion
filed in this case, Dr. Vogt was both an employee of NYIT and a consultant for Infotec. DE 58
During his deposition, Dr. Vogt, who was not represented by counsel at the time, refused
to answer a line of questions pertaining to a separate litigation between NYIT and Infotec in New
York State Supreme Court, New York County, entitled New York Institute of Technology v.
Mohomed Yossry Hussein, Robert G. Vogt, and Infotec Institute Limited, Index No. 09/603335
(the “NYIT/Infotec Litigation”). In the NYIT/Infotec Litigation, NYIT sued Infotec for breach of
contract and asserted causes of action against Dr. Mohamed Yossry Hussein, Infotec’s alleged
majority shareholder and President, for alter ego liability and indemnification. DE 110, Ex. 3.
Plaintiff argues that the NYIT/Infotec Litigation is relevant for two reasons. First, Plaintiff
believes the NYIT/Infotec Litigation will shed light on Infotec’s status as an agent of NYIT – an
issue that Plaintiff argues is relevant to NYIT’s document preservation obligations and NYIT’s
responsibility for Infotec’s discriminatory conduct. Plaintiff points to sworn testimony submitted
in the NYIT/Infotec Litigation referring to acts taken by Infotec “as agent and trustee for and on
behalf of NYIT.” Id., Ex. 4 ¶ 16.1 Second, Plaintiff argues that the NYIT/Infotec Ligitation
bears on the credibility of the NYIT and Infotec witnesses since the case involved allegations of a
“scheme to evade corporate taxes.” Id., Ex. 3 ¶ 56.
When a witness refuses to answer a question during a deposition, “the questioning party
may subsequently move to compel disclosure of the testimony that it sought.” Kelly v. A1
This quoted language is taken from the December 8, 2009 Affidavit of Leonard Aubrey in
Support of Plaintiff’s Motion for the Appointment of a Temporary Receiver in the NYIT/Infotec
Litigation (“Aubrey Aff.”) ¶ 16. Leonard Aubrey is NYIT’s Vice President for Financial Affairs,
CFO and Treasurer who was “extensively involved in NYIT’s ongoing contractual relationships
with Defendants Infotech, Hussein and Vogt.” Aubrey Aff. ¶ 1. Pursuant to a 2001 Agreement
between NYIT and Infotec, NYIT and Infotec’s controlling shareholder Mohamed Hussein
opened and operated educational sites offering NYIT degree programs in Amman, Jordan and in
Manama, Bahrain. Id. ¶ 15. In 2005, the same parties entered into a new agreement, revising
and supplementing the 2001 Agreement with an enhanced ten-year term. Id. Pursuant to the
2005 Agreement, NYIT was responsible for, among other things, establishing programs and
degree requirements while Infotec and Hussein were responsible for recruiting qualified students,
providing marketing services, and providing NYIT students and faculty with classrooms, offices
and other academic facilities at the sites in Jordan and Bahrain. Id. ¶ 16. Significantly, Mr.
Aubrey asserts, Infotec and Hussein were responsible for these tasks “. . . and, of critical
importance, collecting, as agent and trustee for and on behalf of NYIT, all tuition and fees from
students matriculating into NYIT programs in Jordan and Bahrain . . . .” Id.
Technology, No. 09-CV-962, 2010 WL 1541585, at *20 (S.D.N.Y. April 12, 2010) (citing Luc
vets Diamant v. Akush, No, 05-CV-2934, 2006 WL 258293, at *2 (S.D.N.Y. Feb. 3, 2006)).
“The court must determine the propriety of the deponent’s objection to answering the questions,
and can order the deponent to provide improperly withheld answers during a continued
It is unclear exactly what Dr. Vogt’s basis was for refusing to answer the questions. It
appears that he objected on grounds of relevance given his statements that the NYIT/Infotec
Litigation was none of counsel’s “business” and “had nothing to do with Balk.” DE 110, Ex. 2 at
121-23. The Court hereby overrules Dr. Vogt’s objections and finds that the questions were
First, the Court notes that irrelevance is not a valid basis for refusing to answer a question
during a deposition. Kelly, 2010 WL 1541585, at *20; see Calderon v. Symeon, No. 06-CV1130, 2007 WL 735773, at *2 (D. Conn. Feb. 2, 2007) (directing pro se party to answer all
deposition questions unless she was asserting a privilege). If there is an objection to a question,
the court reporter must note the objection “but the examination still proceeds [and] the testimony
is taken subject to any objection.” Fed. R. Civ. P. 30(c)(2). Although not directly applicable
here since Dr. Vogt was not represented by counsel, the Court observes that “[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) [(relating to motions
to terminate a deposition)].” Since Dr. Vogt’s objection was not based on privilege or any other
permitted grounds, he had no legal basis to refuse to answer the questions posed.
While the Court does not fully agree with Plaintiff’s proffer of relevance,2 the Court
concludes that the questions posed during the deposition and referenced in Plaintiff’s motion
papers are relevant. Federal Rule of Civil Procedure 26(b)(1) provides that parties “may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”
The definition of relevancy under Rule 26 is to be “construed broadly to encompass any matter
that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or
may be in th[e] case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see
Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F.2d 682, 687 (2d Cir. 1989) (holding that “the
broad scope of discovery delimited by the Federal Rules of Civil Procedure is designed to
achieve disclosure of all the evidence relevant to the merits of a controversy”); Barrett v. City of
New York, 237 F.R.D. 39, 40 (E.D.N.Y. 2006) (noting that the information sought “need not be
admissible at trial to be discoverable”).
The relationship between Infotec and NYIT, clearly an issue in the NYIT/Infotec
Litigation, as noted, is relevant to Plaintiff’s allegations in this case that Infotec and NYIT were
joint employers, see Am. Compl. ¶¶ 25, 87-101. Moreover, the NYIT/Infotec Litigation, which
involved allegations that Dr. Hussein dominated Infotec for unlawful purposes, see DE 110, Ex.
3, may shed light on an important practical matter in this case: who/what is Infotec, what is its
current status, and what was its relationship with NYIT and the Plaintiff at the time of the
incidents giving rise to the pleadings. An entry of default was initially entered against Infotec on
June 13, 2011. That notation of default was later vacated by stipulation of the parties. DE 35.
For example, since document discovery is closed, there should be no need to revisit the
parties’ document preservation obligations.
Thereafter, Infotec’s counsel moved to withdraw from the case and Judge Bianco granted the
motion. DE 72; DE 77. In March 2012, Plaintiff moved for leave to file an Amended
Complaint. DE 80. Judge Bianco granted the motion and ruled that if Infotec did not retain
counsel and file an answer within the time period required, Plaintiff could move for a default
judgment with respect to Infotec. DE 82. Infotec has not yet appeared or responded to the
Amended Complaint and Plaintiff has had difficulty obtaining the deposition of Infotec’s
principal, Dr. Hussein, see DE 102. Thus, although the NYIT/Infotec Litigation did not involve
Plaintiff Balk or his claims, the Court finds that the prior lawsuit bears, or could lead to other
matter that bears on, issues in this case.
The Court has reviewed NYIT’s opposition to the continued deposition [DE 112] and
finds its objections to be unavailing.3 First, NYIT argues that Plaintiff’s request is moot because
Plaintiff is now in possession of the complaint filed in the NYIT/Infotec Litigation.
Notwithstanding Plaintiff’s possession of the complaint, counsel may wish to explore Dr. Vogt’s
knowledge of the lawsuit and circumstances related to it. NYIT also states that the NYIT/Infotec
Litigation is not relevant to this matter. As discussed supra, the Court disagrees. Finally, NYIT
states that Dr. Vogt and NYIT will be prejudiced if they are compelled to expend time and legal
expenses in attending a second deposition. As to the prejudice to Dr. Vogt, NYIT lacks standing
to assert this argument since NYIT is not representing Dr. Vogt. As to the prejudice to NYIT,
the Court notes that depositions are a regular and routine aspect of litigation and it is not
uncommon for a deposition of a non-party to be re-opened in these circumstances.
NYIT requested, and was granted, leave to file a late opposition letter due to widespread
difficulties in the aftermath of Hurricane Sandy. See DE 111.
For the foregoing reasons, the Court directs Dr. Vogt to appear again for the continuation
of his deposition in order to answer the questions previously posed to him regarding the
NYIT/Infotec Litigation, as well as any reasonable follow-up questions. The re-opened
deposition shall not exceed 90 minutes in duration and is to be completed no later than January 3,
2013. Counsel are directed to work together cooperatively to make arrangements for the
deposition, including making any reasonable accommodation to Dr. Vogt’s schedule.
Dr. Vogt is reminded that he is still subject to the duly authorized subpoena previously
served upon him for his deposition. Plaintiff’s counsel is directed to serve a copy of this Order
upon Dr. Vogt forthwith by overnight mail and first class mail and to file proof of service on
Dated: Central Islip, New York
November 19, 2012
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?