Weinrib et al v. Winthrop-University Hospital et al

Filing 79

ORDER granting in part and denying in part 55 Motion to Compel. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/22/2016. (Roman, Joshua)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
LANCE J. WEINRIB, Individually, and as
Executor of the Estate of Alfred Weinrib and
MELINDA M. WEINRIB,
Plaintiffs,
- against WINTHROP-UNIVERSITY HOSPITAL,
THE ROSALIND AND JOSEPH GURWIN
JEWISH GERIATRIC CENTER OF LONG
ISLAND, INC., doing business as GURWIN
JEWISH NURSING & REHABILITATION
CENTER, GOOD SAMARITAN HOSPITAL
MEDICAL CENTER, NEW YORKPRESBYTERIAN HEALTHCARE SYSTEM,
INC., and CATHOLIC HEALTH SYSTEM
OF LONG ISLAND, INC., doing business as
CATHOLIC HEALTH SERVICES OF
LONG ISLAND,

MEMORANDUM
AND ORDER
CV 14-953 (JFB) (AKT)

Defendants.
---------------------------------------------------------X

I.

PRELIMINARY STATEMENT
This action is brought by Plaintiffs Lance J. Weinrib, individually and as Executor of the

Estate of Alfred Weinrib, and Melina M. Weinrib (collectively the “Plaintiffs”) against
Defendants Winthrop University Hospital (“Winthrop”), The Rosalind and Joseph Gurwin
Jewish Geriatric Center of Long Island, Inc. d/b/a Gurwin Jewish Nursing & Rehabilitation
Center (“Gurwin”), Good Samaritan Hospital Medical Center (“Good Samaritan”), New YorkPresbyterian Healthcare System, Inc., and Catholic Health System of Long Island, Inc. d/b/a
Catholic Health Services of Long Island (collectively, the “Defendants”), asserting claims under
the Americans with Disabilities Act of 1973, 42 U.S.C. §§ 1201 et. seq. (“ADA”), its

implementing regulation, 28 C.F.R. Part 36, the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et.
seq., the New York State Human Rights Law (“NYSHRL”), Article 15 of the N.Y. Executive
Law §§ 290 et. seq., as well as other state laws and common law.
Presently before the Court is Plaintiffs’ letter motion seeking to compel answers to
certain deposition questions posed to Defendant Winthrop’s Rule 30(b)(6) witness, Jean
Zebroski (“Zebroski”), at Winthrop’s deposition on May 8, 2015. The motion also seeks fees
and sanctions against Defendants for “obstruct[ing] the proceedings.” See DE 55. Defendants
oppose Plaintiffs’ motions on the grounds that the objections asserted by Defendant Winthrop’s
counsel at the deposition were warranted. See DE 56. For the reasons that follow, Plaintiffs’
motion to compel and for attorney’s fees and expenses is GRANTED, in part, and DENIED, in
part.
II.

DISCUSSION1
A.

Motion to Compel Deposition Testimony
1.

Applicable Law

In general, discovery may be obtained “regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case . . . Information
within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R.
Civ. P. 26(b)(1); see Bristol-Myers Squibb Co. v. Rhone-Poulenc River, Inc., No. 95 CIV. 8833,
1998 WL 2829, at *2 (S.D.N.Y. Jan. 6, 1998). Depositions by oral examination are governed by
Rule 30 of the Federal Rules of Civil Procedure. The proper procedure for interposing
objections during a deposition is set forth in Rule 30(c)(2) which states that

The Court dispenses with a recitation of the factual background underlying the instant
action in light of the fact the motions do not go to the merits of Plaintiffs’ claims.
2
1

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. 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). The Rule makes clear that once an objection is noted for the record the
examination proceeds and the testimony of the deponent is taken subject to the objection. Id.;
see Gould Investors, L.P. v. General Ins. Co. of Trieste & Venice, 133 F.R.D. 103, 104
(S.D.N.Y. 1990); Luc Vets Diamant v. Akush, No. 05 Civ. 2934, 2006 WL 258293, at *1
(S.D.N.Y. Feb. 3, 2007); T.Z. v. City of New York, CV-05-511, 2008 WL 544707, at *4
(E.D.N.Y. Feb. 26, 2008). Further, counsel “may instruct a deponent not to answer only when
necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a
motion under Rule 30(d)[3].” Gould Investors, L.P., 133 F.R.D. at 104 (quoting Fed. R. Civ. P.
30(c)(2)) (emphasis added); see also U.S. ex rel. Tiesinga v. Dianon Sys., Inc., 240 F.R.D. 40, 43
(D. Conn. 2006) (“Ordinarily, it is improper for counsel to direct a witness not to answer a
question posed at a deposition, even if the question is improper or beyond the scope of a
deposition notice.”). At least one court has observed that “[t]hese rules properly recognize that
‘[d]irections to a deponent not to answer a question can be even more disruptive than
objections.’” U.S. ex rel. Tiesinga, 240 F.R.D. at 43 (quoting Fed. R. Civ. P. 30 Advisory
Committee’s Note to 1993 Amendments).
It follows from the directive set forth in Rule 30(c)(2) that lack of relevancy is not a
proper basis for instructing a witness not to answer deposition questions. Luc Vets Diamant v.
Akush, 2006 WL 258293, at *1; Chloe Shipping Corp. v. Mediterranean Shipping Co., No. 97
3

Civ. 6764, 1999 WL 675985, at *1 (S.D.N.Y. Aug. 30, 1999); HCC, Inc. v. RH & M Machine
Co., No. 96 Civ. 4920, 1997 WL 675334, at *2 (S.D.N.Y. Oct. 30, 1997); Kelly v. A1
Technology, No. 09–CV–962, 2010 WL 1541585, at *20 (S.D.N.Y. April 12, 2010); Calderon v.
Symeon, No. 06–CV–1130, 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); Balk v. New York
Inst. of Tech., No. CV 11-509, 2012 WL 5866233, at *2 (E.D.N.Y. Nov. 19, 2012).
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, 2010 WL
1541585, at *20 (citing Luc vets Diamant, 2006 WL 258293, at *2). “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 deposition.” Id.; see Balk, 2012 WL
5866233, at *1.
2.

Application to the Facts

Plaintiffs’ counsel highlights three specific instances during the deposition of Jean
Zebroski where Attorney Rozynski claims opposing counsel inappropriately directed the witness
not to answer a particular question. See DE 55. The Court will review each instance in turn.
The first instance arose during the following inquiry:
Q:

As far as your knowledge, are there questions and answers in that
blue book that relate to providing services for the deaf at the
hospital?

A:

There is.

Q:

Do you recall what those questions are?

A:

I believe the question is what type of service or what type of
service is provided to a hearing impaired patient or how do you
access services for a hearing impaired patient. Then it,
4

specifically, details the process by which services are accessed
through the help desk, for obtaining a Deaf Talk computer on
wheels.
Q:

Are you or the hospital aware that the phrase “hearing impaired” is
considered offensive by the deaf community?

[Def.’s Counse]:

Objection. Direct her not to answer it. Move on, Counsel. Don’t
answer the question. Move on. Next question.

May 8, 2015 Deposition of Winthrop-University Hospital, by Jean Zebroski (“Zebroski Dep.”)
[DE 55-1] at 77-78. This exchange prompted further inquiry:
[Pls.’ Counse]:

Is that privileged or?

[Def.’s Counsel]:

I direct her not to answer. Move on.

[Pls.’ Counsel]:

Under what basis?

[Def.’s Counsel]:

I direct her not to answer. Move on. You can mark it for a
ruling and pick it up with the Magistrate Judge at the
appropriate time. I note for the record, you have seven
hours to complete the deposition. You have now wasted
three hours of it.

[Pls.’ Counse]:

“Wasted,?”

[Def.’sCounsel]:

Yeah, because you are only going to have topics on the
floor, so I suggest that you ask questions that are relevant
and not inflammatory.

[Pls.’ Counsel]:

We are going to mark that for a ruling.

Id. at 77-78. Plaintiffs’ counsel asserts that his initial question concerning Winthrop’s awareness
whether the term “hearing impaired” is considered offensive is “relevant as pertains to the
deliberate indifference standard for Plaintiffs’ Rehabilitation Act claim” and that in any event,
even if relevancy were lacking, it was still improper for Winthrop’s counsel to direct the witness
not to answer. See DE 55 2-3. In response, Defendant’s counsel states that “[w]hether or not the
Hospital is aware that a segment of the deaf community may or may not consider the term
5

‘hearing impaired’ to be offensive is wholly irrelevant . . . and was asked in a manner designed
to embarrass or harass. . . .” See DE 56 at 2.
After reviewing the excerpts of the Zebroski deposition transcript as well as the parties’
motion papers, the Court finds that the directive to witness Zebroski not to answer the question at
issue was improper. Counsel “may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation directed by the court, or to present a motion under
Rule 30(d)[3]” Gould Investors, L.P., 133 F.R.D. at 104; see also U.S. ex rel. Tiesinga, 240
F.R.D. at 43. Winthrop’s counsel did not assert the existence of a privilege or any limitation
directed by the Court which would warrant such direction. Further, although Winthrop’s counsel
makes reference in his opposition to Rule 30(d)(3), see DE 56 at 1 n. 1, — which provides an
aggrieved party with the ability to move at any time during the deposition to terminate or limit
the examination on the grounds that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses or oppresses the deponent — Winthrop’s counsel did not take
such action at any time during the deposition. See Severstal Wheeling Inc. v. WPN Corp., No. 10
CIV. 954, 2012 WL 1982132, at *2 (S.D.N.Y. May 30, 2012) (recognizing that where counsel
directed witness not to answer questions during deposition because they were “plainly irrelevant”
or “designed to harass,” counsel “should have either sought a ruling to terminate the deposition
[pursuant to Rule 30(d)(3)] or obtained opposing counsel’s agreement to defer such an
application until the conclusion of whatever questions remained to be asked in the deposition.
[Counsel] was not free simply to pepper the proceeding with interruptions and directions not to
answer.”). In addition, after reviewing the transcript, the Court does not find the manner in
which Plaintiffs’ counsel posed the question to be inflammatory. Further, Winthrop’s argument
that the question was “wholly irrelevant” is similarly without merit since, as noted above,
6

relevance or the lack thereof does not provide a basis to direct a witness not to answer a question.
See Luc Vets Diamant, 2006 WL 258293, at *1; Balk, 2012 WL 5866233, at *2; Severstal
Wheeling Inc., 2012 WL 1982132, at *2 (noting that “it is hardly ever appropriate to instruct a
witness not to answer on the ground of relevance”). In sum, the Court finds that notwithstanding
the marginal relevance of the inquiry, the witness should have answered the question.
The second instance giving rise to the instant motion involves questioning by Plaintiffs’
counsel regarding auxiliary services provided to those with hearing difficulties as contained in
Winthrop’s Patient Guidebook. Specifically, Plaintiffs’ counsel posed the following questions to
witness Zebroski:
Q:

What is this document?

A:

It is our patient guide book, the hospital’s patient guide book.

Q:

Is this given to all patients?

A:

Upon admission, yes.

Q:

Does this talk about how one could get auxiliary services for
effective communication?

A:

It does on page 13.

Q:

By 13?

A:

Sorry.

Q:

Referring to?

A:

539.

Q:

So does it – do these materials tell you where you can get auxiliary
or aided services?

A:

It states that you [sic] hearing impaired patient my [sic] obtain a
TDD or volume control device by calling the telephone number
7

2457 which is the T B telephone rental number or any other time,
the hospital operator.
Q:

So if a person is deaf and doesn’t have access to a TDD, how can
they call extension 2457 or dial 0?

A:

If their family member is with them and reading this which often
happens they can do it or the patient would show this to a staff
member and a staff member would be able to access the service for
them.

Q:

So if the whole family is deaf, they should –

[Def.’s Counsel]:

Don’t Answer this question.

[Pls.’ Counsel]:

What question?

[Def.’s Counsel]:

The question is as is being posed is argumentative. Move
on.

[Pls.’ Counsel]:

“Argumentative?”

[Defs.’ Counsel]:

Go ahead. Next question.

[Pls.’ Counsel]:

Mr. Breitenbach [Winthrop’s counsel] you know, if your
instruction is not to answer, it’s highly improper and you
can object to form, but you can’t object to my questioning
and continue this. We will be writing a letter to the Judge.

[Def.’s Counsel]:

Feel free to do so.

[Pls.’ Counsel]:

Mark it for a ruling.

Q:

Are you saying that it’s a deaf person’s responsibility, if
they do not have access to a phone, to show this to a staff
member to get access to a TDD?

[Def.’s Counsel]:

Objection. You may answer.

A:

If a request is made to the staff for any type of device, the
staff will fulfill the request, so the request could be made
through a sign language Interpreter it could be made by
pointing out this section of the book, it could be made by
making the request in writing.
8

Q:

These other options are not listed in this section; is that
correct?

A:

No, it’s not specifically written here.

Id. at 109-111.
Plaintiffs’ counsel asserts that Winthrop’s attorney did not permit him the opportunity to
ask the complete question before interrupting and directing the witness not to answer. See DE 55
at 3. Had Plaintiffs’ counsel been able to make the full inquiry, he maintains that the question
would not have been inflammatory. In any event, counsel contends it was improper for
Winthrop’s attorney to direct the witness to refrain from providing an answer. Id. In opposition,
Winthrop’s counsel asserts that the witness’s prior answers concerning this line of questioning
were clear and therefore the question posed by Plaintiffs’ counsel “which merely sought to argue
with the witness over technical language of the Hospital’s patient guidebook, was patently
improper.” See DE 56 at 2.
At the outset, the Court points out that Winthrop’s counsel did not interpose a proper
objection to the question being asked by Plaintiffs’ counsel at any point during the colloquy.
Indeed, Plaintiffs’ counsel was not even permitted to finish the question. Thus, even had
Winthrop’s counsel interposed a valid objection such objection would have been premature. The
Court similarly finds Winthrop’s argument — that Plaintiffs’ counsel was disagreeing over
technical language in the Patient Guidebook and thus the question was improper — to be without
merit since the transcript fails to bear this out. Taken in context, the Court finds that this line of
questioning was relevant and even if the relevance was limited, the directive by Winthrop’s
counsel not to answer the question was inappropriate. See Rule 30(c)(2). Again, Winthrop’s
counsel failed to follow the procedure prescribed in Rule 30 for interposing objections. The Rule
9

makes clear that once a question is asked the opposing party can interpose an objection — which
must be stated concisely and noted on the record. See id. At that point, the deposition proceeds
and the witness answers the question, the objection having been preserved. Id. Only in the event
that the question implicates a privilege or is posed in derogation of a limitation directed by the
court — or where counsel seeks to present a motion under Rule 30(d)(3) — may counsel then
direct the witness not to answer the question. After reviewing the transcript, the Court finds that
none of the explicit circumstances identified by Rule 30(c)(2) were implicated by the question
asked in this section of the testimony.
The third series of questions giving rise to this motion was directed to prior complaints
(presumably of disability discrimination) Defendant Winthrop had received. Defendant’s
counsel characterizes the questions as ones “regarding the [witness’] preparation for her
deposition.” DE 56 at 2. The following series embodies the dispute:
Q:

You have a complaint file?

A:

Not with me.

Q:

But at the [] Winthrop University Hospital?

A:

Yes.

Q:

Where is this located?

A:

In my office.

Q:

Did you produce those to your attorney?

[Def’s. Counsel]:

Objection. I direct her not to answer. Attorney work
product.

[Pls.’ Counse]:

When she produced documents to you?

[Def’s. Counsel]:

Absolutely. We are not going into the thought process of a
court order. As your next question
10

[Pls.’ Counsel]:

Mark that for a ruling.

Q:

When is the last time you looked in that database for
complaints from deaf individuals?

[Def.’s Counsel]:

I am going to direct her not to answer.

[Pls.’ Counsel]:

On what basis?

[Def.’s Counsel]:

Attorney work product.

[Pls.’ Counsel]:

It has nothing to do with attorney work product.

[Def.’s Counsel]:

Ask your next question. You know the procedure. If you
have problem with it, you can make a motion to compel.

Zebroski Dep. at 118-120.
Plaintiffs’ counsel asserts that he is unclear how “asking the deponent about reviewing
her own files could implicate attorney work product . . . [since] Defense counsel did not prepare
the documents at issue, and indeed none of the documents were prepared or organized ‘in
anticipation of litigation.’” See DE 55 at 3. In response, Winthrop’s counsel states that “the
questions posed by Plaintiffs’ counsel clearly call for information protected by the work product
doctrine. Ms. Zebroski’s decision to turn over documents to her attorneys, and her actions in
reviewing the specific complaints in her file, were informed by and done at the direction of
counsel based upon our analysis of this case.” See DE 56 at 2-3.
The so-called “work product privilege” is codified in Federal Rule of Civil Procedure
26(b)(3) which provides, in part, as follows:
Ordinarily, a party may not discover documents and tangible things
that are prepared in anticipation of litigation . . . . But, subject to
Rule 26(b)(4), those materials may be discovered if: (i) they are
otherwise discoverable . . . ; and (ii) the party shows that it has
substantial need for the materials to prepare its case and cannot,
11

without undue hardship, obtain their substantial equivalent by
other means.
....
If a court orders discovery of those materials, it must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a party’s attorney or other legal
representative concerning the litigation. Fed. R. Civ. P. 26(b)(3).
Essentially, the work product privilege “provides qualified protection for materials
prepared by or at the behest of counsel in anticipation of litigation or for trial.” In re Grand Jury
Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) (quoting In re Grand Jury
Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003)); see also
United States v. Adlman, 134 F.3d 1194, 1196–97 (2d Cir. 1998) (noting that “work product
privilege ‘is intended to preserve a zone of privacy in which a lawyer can prepare and develop
legal theories and strategy ‘with an eye toward litigation,’ free from unnecessary intrusion by his
adversaries”) (quoting Hickman v. Taylor, 329 U.S. 495, 510–11 (1947)). The party asserting
the privilege bears the “heavy burden of establishing its applicability.” In re Grand Jury
Subpoena Dated July 6, 2005, 510 F. 3d at 183.
“Because the work product protection arises only for materials ‘prepared in anticipation
of litigation,’ the doctrine is not satisfied merely by a showing that the material was prepared at
the behest of a lawyer or was provided to a lawyer. Rather the materials must result from the
conduct of ‘investigative or analytical tasks to aid counsel in preparing for litigation.’” Wultz v.
Bank of China Ltd., 304 F.R.D. 384, 393-94 (S.D.N.Y. 2015) (quoting Costabile v. Westchester,
N.Y., 254 F.R.D. 160, 164 (S.D.N.Y. 2008)). Significantly, work product protection does not
apply to “documents that are prepared in the ordinary course of business or that would have been
12

created in essentially similar form irrespective of the litigation . . . [e]ven if such documents
might also help in preparation for litigation. . . .” Adlman, 134 F.3d at 1202. In making a
determination, a court must ask “not merely whether [the party invoking the privilege]
contemplated litigation when it generated the materials at issue, but rather whether these
materials ‘would have been prepared in essentially similar form irrespective of litigation.’”
Allied Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96, 106 (S.D.N.Y. 2007) (quoting Adlman,
134 F.3d at 1204).
The burden of establishing that the doctrine applies rests on the party asserting the
privilege, and, as such, it is that party who is tasked with showing what “would have” happened
in these circumstances. Wultz, 2015 WL 362667, at *11. As the court noted in Allied Irish
Banks,
it is not easy for a factfinder to determine what “would have”
happened in some hypothetical situation. . . . Nonetheless, this is the
question that the Adlman test requires us to answer and it is an exercise
that courts have regularly performed.
240 F.R.D. at 106; see Verizon Directories Corp. v. Yellow Book USA, Inc., No. 04-CV-251,
2004 WL 4054842, at*2 (E.D.N.Y. July 22, 2004) (e-mail released where no showing made that
it would not have been created in essentially similar form irrespective of the litigation); DeBeers
LV Trademark Ltd. v. DeBeers Diamond Syndicate, Inc., No. 04 Civ. 4099, 2006 WL 357825, at
*1 (S.D.N.Y. Feb. 15, 2006) (documents created by management consultant not work product
where consultant “would have created” them in similar form “even if the potential for litigation
had been remote”); In re Otal Invs. Ltd. v. Capital Bank Pub. Ltd. Co., No. 03 Civ. 4304, 2005
WL 1473925, at *1 (S.D.N.Y. June 22, 2005) (factual statement prepared following collision of

13

boats not work product where “business reasons for obtaining a statement from their captains”
would have compelled the report regardless of litigation).
In the instant case, Winthrop has failed to meet its “heavy burden” of establishing the
applicability of the work product privilege. See In re Grand Jury Subpoena Dated July 6, 2005,
510 F. 3d at 183. A review of the deposition transcript reveals that the particular line of
questioning here by Plaintiffs’ counsel concerned a “complaint file” that was purportedly kept by
Zebroski at Winthrop Hospital. See Zebroski Dep. at 118. This complaint file apparently
contained complaints, not only with respect to deaf individuals, but rather “[f]or everybody.” Id.
at 119. Further, Zebroski characterized the file as a “database” and claimed that she had
reviewed it as recently as one day prior to her deposition. Id. Initially, the Court points out that
Zebroski was proffered as Winthrop’s Rule 30(b)(6) witness. The question of whether Zebroski
produced her complaint file to outside counsel called for a simple yes or no answer — one
without an impact on any privilege asserted. Moreover, to the extent Zebroski assisted outside
counsel in responding to discovery demands, the question was relevant.
As stated above, the work product privilege “provides qualified protection for materials
prepared by or at the behest of counsel in anticipation of litigation or for trial.” In re Grand Jury
Subpoena Dated July 6, 2005, 510 F.3d at 183. Therefore “documents that are prepared in the
ordinary course of business or that would have been created in essentially similar form
irrespective of the litigation . . . [e]ven if such documents might also help in preparation for
litigation. . . .”, Adlman, 134 F.3d at 1202, are not imbued with work product status. Plaintiffs’
counsel sought to ask two questions concerning the subject complaint file: (1) whether the
complaint file was produced to Winthrop’s counsel; and (2) the date Zebroski last reviewed the
complaint file for complaints lodged by deaf individuals. See Zebroski Dep. at 118-119. Neither
14

of the posed questions goes to the substance of the complaints which may have existed within the
complaint file. The complaint file itself, based upon a straightforward reading of the deposition
transcript, falls outside the ambit of the work product privilege. Specifically, the transcript
reflects that this complaint file or database was kept by Zebroski on behalf of Winthrop Hospital
in the ordinary course of the hospital’s business. Indeed, a hospital may have multiple purposes
for preparing a complaint database (i.e. to ensure efficient operations, patient satisfaction, quality
control and proper compliance with statutory and regulatory requirements), separate and apart
from any particular litigation. There is no indication that this complaint file was prepared by or
at counsel’s direction in anticipation of the instant litigation or was otherwise the product of
investigative or analytical tasks to aid counsel in preparing for litigation. As such, the work
product privilege is inapplicable and Winthrop’s objection is without merit. The witness should
therefore have been permitted to answer the questions posed. In addition, although, as Winthrop
asserts, certain pre-deposition conversations with an attorney may be shielded where the nature
of the conversation would “reveal [] counsel’s legal strategy and thought processes” in
contravention of the attorney work product doctrine, the nature of the questions at issue here
simply do not directly or indirectly peer into the thought processes or legal strategy of counsel.2

In its opposition, Winthrop claims that the questions were “improper in that they sought
information protected by the attorney-client privilege, as they implicate confidential
communications between Ms. Zebroski and her attorneys regarding legal advice.” See DE 56 at
3. In the first instance, Winthrop’s counsel did not raise an objection based upon the attorneyclient privilege to the questions at issue. The sole objection raised concerned the attorney work
product privilege. See Zebroski Dep. at 118-120. As such, this objection is deemed waived. See
Rule 30(c)(2) (stating that “[a]n objection at the time of the examination . . . must be noted on the
record”); see also McGullam v. Cedar Graphics, Inc., No. CV 04 2891, 2007 WL 708800, at *2
(E.D.N.Y. Mar. 6, 2007) (“courts have routinely held that objections not timely stated may be
deemed waived.”). In any event, Winthrop’s generalized and conclusory assertion of the
attorney-client privilege in its opposition is without merit since “in refusing to answer deposition
questions a party may not rely on generalized assertions of attorney-client privilege but must
15
2

See Morales v. United States, No. 94 CIV. 4865, 1997 WL 223080, at *1 (S.D.N.Y. May 5,
1997) (internal quotations and citation omitted); Exp.-Imp. Bank of the U.S. v. Asia Pulp &
Paper Co., 232 F.R.D. 103, 112 (S.D.N.Y. 2005) (“Pre-deposition conversations may also be
work product; to the extent Ex–Im’s attorneys communicated their legal opinions and theories of
the case, their conversations are immune from discovery.”).
Based the foregoing analysis, Plaintiffs’ motion to compel is GRANTED. The Court
directs that the Rule 30(b)(6) deposition of Winthrop by its corporate representative, Jean
Zebroski, be re-opened for the limited purpose of obtaining answers to the questions that the
witness was erroneously directed not to answer. The re-opened deposition shall be held not later
than 30 days from the date of the entry of this Order.
B.

Motion for an Award of Fees

Plaintiffs seek the award of fees and costs in preparing the underlying motion3 for the
“time spent on th[e] letter motion [to compel] pursuant to Fed. R. Civ. P. 37” in light of the fact

make reference to specific privileged communications that would be revealed.” Bristol-Myers
Squibb Co. v. Rhone-Poulenc Rorer, Inc., No. 95 CIV. 8833, 1998 WL 2829, at *4 (S.D.N.Y.
Jan. 6, 1998); see S.E.C. v. Morelli, 143 F.R.D. 42, 46 (S.D.N.Y. 1992) (“rather than
enumerating the specific privileged communications that would be revealed, the SEC relies on
the generalized assertion that the proposed deposition would necessarily involve revealing
‘discussions with counsel.’ In the absence of specific references by the SEC to privileged
communications that would be revealed by allowing the deposition to proceed, the Court rejects
plaintiff’s argument that the . . . deposition would infringe on the attorney-client privilege.”).
Although Plaintiffs seek sanctions in addition to fees, Plaintiffs do not provide the Court
with any authority or rationale as to why sanctions should be imposed other than conclusory
assertions that Winthrop’s counsel failed to follow the proper procedure for addressing
deposition disputes and otherwise ignored applicable rules. See DE 55 at 3. However, such
factual conclusions, “with no citations to the record or any legal authority for support does not
constitute adequate briefing.” In re Julian, No. 11-30151, 2012 WL 506573, at *4 (D. Conn.
Feb. 15, 2012). Furthermore, “the Court has no obligation to consider an argument for which a
party has cited no legal authority.” Glidepath Holding v. Spherion Corp., 590 F. Supp. 2d 435,
459 n. 9 (S.D.N.Y. 2007); see Field Day, LLC v. Cty. of Suffolk, No. 04-CV-2202, 2005 WL
16
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that “Defense counsel repeatedly advised Plaintiff’s counsel that the proper procedure if a
dispute arises is for the witness to decline to answer the question” and due to such an erroneous
belief, “Defense counsel obstructed the proceedings, necessitating the instant letter motion.” See
DE 55 at 3. Winthrop responds stating that of the 121 pages of testimony elicited during the
deposition, Plaintiffs “merely challenge, the refusal, in three isolated instances, to answer
immaterial questions . . . [and] Plaintiffs have thus not demonstrated that counsel materially
impeded, delayed, or frustrated their fair examination of Ms. Zebroski.” See DE 56 at 3.
1.

Applicable Law

Rule 37(a) provides that a party may make a motion to compel in the event that “a
deponent fails to answer a question asked under Rule 30 or 31.” Fed. R. Civ. P. 37(a)(3)(B)(i).
Further, after providing both sides an opportunity to be heard, in the event the motion is granted,
the court “must . . . require the party or deponent whose conduct necessitated the motion, the
party or attorney advising the conduct, or both, to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees.” Id. 37(a)(5)(A); see Riddell Sports Inc. v.
Brooks, 158 F.R.D. 555, 558 (S.D.N.Y. 1994) (“an award of reasonable expenses, including
attorneys fees, is available to the party that prevails on the motion if his adversary’s position was
not substantially justified”); Fondren v. Republic American Life Ins. Co., 190 F.R.D. 597, 601

2445794, at *18 n. 8 (E.D.N.Y. Sept. 30, 2005), aff’d in part, rev’d in part, 463 F.3d 167 (2d Cir.
2006) (“[B]ecause . . . [the defendant] cites absolutely no authority to support . . . [its
argument], the Court will not consider it.”); see also U.S. v. Van Buren, No. 3:08-CR-198, 2008
WL 2884977, at *2 (N.D.N.Y. Jul. 23, 2008) (“[I]t is not the Court’s role to peruse the cases or
the legal data bases looking for authority that supports a broad legal assertion.”); Sioson v.
Knights of Columbus, 303 F.3d 458, 460 (2d Cir. 2002) (noting that court’s role is not to act as
an advocate and therefore it is not required to “scour the record” or otherwise “research . . . legal
theor[ies]” on behalf of a litigant); Cicvara v. Duracell, 515 F. App’x 27, 28 (2d Cir. 2013)
(same). Because Plaintiffs have cited no authority to support their position nor presented proper
argument as to why sanctions should be levied upon Winthrop, the Court declines to impose
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(N.D. Okla. 1999). However, “the court must not order this payment if the movant filed the
motion before attempting in good faith to obtain the disclosure or discovery without court
action.” Fed. R. Civ. P. 37(a)(4)(A)(i); see also Local Civil Rule 37.3 (“Prior to seeking judicial
resolution of a discovery or non-dispositive pretrial dispute, the attorneys for the affected parties
or non-party witness shall attempt to confer in good faith in person or by telephone in an effort to
resolve the dispute, in conformity with Fed. R. Civ. P. 37(a)(1)”).
2.

Application to the Facts

Although Plaintiff has prevailed upon its underlying motion to compel, the Court points
out that Plaintiff, in its one paragraph motion for sanctions, has not provided the Court with a
certification or any other information that it attempted in good faith to meet-and-confer with
opposing counsel after the deposition concluded in order to attempt to “obtain the disclosure or
discovery without court intervention.” See Fed. R. Civ. P. 37(a)(4)(A)(i). In addition, taking the
deposition as a whole, the Court has no evidence that Winthrop’s counsel deliberately disrupted
the proceedings in a manner that prevented Plaintiffs from obtaining the primary factual
information sought from Jean Zebroski. The Court therefore declines to award attorney’s fees or
expenses to the Plaintiffs for the instant motion. However, because the actions of Winthrop’s
counsel will necessitate the re-opening of witness Zebroski’s deposition, the Court will require
Defendant Winthrop to pay the reasonable costs incurred for the court reporter and the transcript.

sanctions.

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III.

CONCLUSION
For the reasons stated in the foregoing discussion, Plaintiffs’ motion to compel and

motion for fees are hereby GRANTED, in part, and DENIED, in part, as set forth in this
Memorandum and Order.

SO ORDERED.
Dated: Central Islip, New York
March 22, 2016

/s/_A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge

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