Thompson v. Spota et al
ORDER denying 67 Motion to Compel. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/27/2017. (Roman, Joshua)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CV 14-2473 (JMA) (AKT)
THOMAS J. SPOTA, ROBERT EWALD,
and SUFFOLK COUNTY,
A. KATHLEEN TOMLINSON, Magistrate Judge:
Plaintiff AveMaria Thompson (“Thompson”) brings the instant action against Suffolk
County District Attorney Thomas J. Spota (“DA Spota” or the “DA”), Chief of the Narcotics
Bureau Robert Ewald (“Chief Ewald” or “Ewald”) and Suffolk County (the “County”)
(collectively, “the Defendants”) alleging claims of race discrimination and retaliation arising
under 42 U.S.C. § 1983. See generally Complaint (“Compl.”) [DE 1]. Previously, Plaintiff was
granted leave to file an Amended Complaint. See generally Amended Complaint. (“Am.
Compl.”) [DE 46]. Specifically, the Amended Complaint: (1) adds Suffolk County as a
defendant; (2) adds claims for race discrimination and unlawful retaliation pursuant to Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C.
§ 1983; and (3)
withdraws all claims asserted against ADA Wagner. Before the Court at this time is Plaintiff’s
motion to re-open the depositions of DA Spota, Chief Ewald and non-party Chief Assistant
The Court provided a detailed factual background previously in its Memorandum &
Order addressing Plaintiff’s Motion to Amend. See DE 43. As such, the Court respectfully
refers the reader to that Memorandum & Order for a more fully developed description of the
factual background of this litigation.
District Attorney Emily Constant (“ADA Constant” or “Constant”). See DE 67. Defendants
oppose the motion. DE 68. For the reasons that follow, Plaintiff’s motion is DENIED.
MOTION TO RE-OPEN DEPOSITIONS
A. The Parties’ Contentions
Plaintiff brings the instant motion ostensibly in response to additional document
discovery that was produced by Defendants in accordance with this Court’s April 27, 2016
Order. See DE 65 (granting, in part, and denying, in part, Plaintiff’s April 21, 2016 motion for
discovery [DE 63]). The supplemental submissions include “evaluations and a termination
notice related to Roshika [sic] Hettiarchchi [sic] . . . and notes related to employment issues
involving two white ADAs, Meg Farrell and Susan Onorato.” DE 67 at 1. In addition,
“Defendants also identified a single African American candidate for an ADA position who was
offered, but turned down, the position.” Id. With respect to these submissions, Plaintiff
contends that the depositions of DA Spota, Chief Ewald and ADA Constant — conducted in
December 2015 — should be reopened in order to “further explore the decision-making process
with respect to [Meg] Farrell (“Farrell”) and [Susan] Onorato (“Onorato”), the involvement and
knowledge of Spota, who made the decision to terminate Plaintiff, concerning Farrell and
Onorato, and explanations for the disparities in the way Plaintiff and [Rasheka] Hettiarchchi [sic]
(“Hettiarachchi”) were treated as compared to the [sic] Farrell and Onorato.” DE 67 at 2; see
DE 67, Exhibit (“Ex.”) A (excerpts of deposition testimony) (alterations added). Specifically,
Plaintiff argues that “[t]he documents related to Ms. Farrell and Ms. Onorato show a striking
inconsistency between the way Defendants handled the situations of Plaintiff and Ms.
Hettiarchchi on the one hand and Ms. Farrell and Ms. Onorato on the other.” DE 67 at 1.
In opposition, Defendants assert that “Plaintiff has had a full and fair opportunity to
discover information about Ms. Hettiarachchi, Ms. Farrell and Ms. Onorato [since] Plaintiff was
aware of all three ADAs long before the deposition of Spota, Ewald and Constant.” DE 68 at 2.
In particular, Defendants state that Plaintiff was aware of Ms. Hettiarachchi as early as the filing
of the initial Complaint since that pleading directly refers to “the termination of a ‘dark skinned
female of South Asian national origin,’ which is a clear reference to Ms. Hettiarachchi.” Id.
(quoting Comp. ¶ 9); see also Am. Compl. ¶ 9 (stating that “the NYSDHR based its finding [of
probable cause that the Suffolk County DA’s Office had discriminated and retaliated against
Plaintiff], among other things, on [the] fact that the Suffolk DA only terminated one other ADA
in 2013 – a dark skinned female of South Asian national origin”). In addition, “Plaintiff [ ] did
not seek to discover information regarding Ms. Hettiarachchi in her initial discovery requests.”
DE 68 at 2. With respect to Onorato and Farrell, Defendants state that although Plaintiff alleged
that (1) “‘ADAs who engaged in far more serious misbehavior [then Plaintiff] . . . are not
terminated’” and that (2) “Plaintiff’s counsel confirmed that the plaintiff is aware of specific
[ADAs] who purportedly engaged in conduct more egregious than the Plaintiff and who were not
disciplined at all or not disciplined as severely,” “Plaintiff’s counsel did not identify any such
individuals or otherwise pursue discovery of such individuals before the Spota, Ewald and
Constant depositions.” Id.
Further, during the Spota, Ewald and Constant depositions, “Plaintiff’s counsel revealed
that Ms. Farrell and Ms. Onorato were two of the individuals who purportedly received favorable
treatment [and that] [d]espite ample opportunity to thoroughly question the witnesses about the
treatment and discipline of Ms. Hettiarachchi, Ms. Farrell and Ms. Onorato, Plaintiff’s counsel
asked basic questions and chose not to ask additional questions.” Id. As such, Defendants argue
that “the documents produced in response to [this Court’s] April 27, 2016 Order did not reveal
any new information. Instead, they contained information that was consistent with the testimony
of Mr. Spota, Mr. Ewald and Ms. Constant.” Id. at 2-3.
1. Applicable Law
“A person who has previously been deposed in a matter may be deposed again, but only
with leave of the court.” Sentry Ins. v. Brand Mgmt. Inc., No. 10 Civ. 347, 2012 WL 3288178, at
*8 (E.D.N.Y. Aug. 10, 2012) (citing Fed. R. Civ. P. 30(a)(2)(A)(ii)); see Dash v. Seagate Tech.
(US) Holdings, Inc., No. 13-6329, at *6 (E.D.N.Y. July 14, 2015). “Leave should be granted to
the extent that doing so is consistent with the factors set forth in Rule 26(b)(2), such as ‘whether
the second deposition of the witness would be unnecessarily cumulative, whether the party
requesting the deposition has had other opportunities to obtain the same information, and
whether the burden of a second deposition outweighs its potential benefit.’”2 Sentry Ins., 2012
WL 3288178, at *8 (quoting Ganci v. U.S. Limousine, Ltd., No. 10-3027, 2011 WL 4407461, at
*2 E.D.N.Y. Sept. 21, 2011)) (collecting cases). “Courts will typically re-open a deposition
where there is new information on which a witness should be questioned.” Id. (quoting Ganci,
2011 WL 4407461, at *2); see, e.g, Vincent v. Mortman, No. 04 Civ. 491, 2006 WL 726680, at
*1–2 (D. Conn. Mar. 17, 2006) (allowing plaintiff to re-open deposition when one witness’
deposition contradicted defendants’ deposition and medical records); Chang v. Safe Horizons,
No. 03 Civ. 10100, 2004 WL 1874965, at *2 (S.D.N.Y. Aug. 18, 2004); Keck v. Union Bank of
Switzerland, No. 94 Civ. 4912, 1997 WL 411931, at *2 (S.D.N.Y. July 22, 1997) (deposition re-
Pursuant to the Amendment of the Federal Rules which took effect on December 1, 2015,
the burden versus benefit analysis is no longer contained in Rule 26(b)(2). Instead, that
balancing test is contained within Rule 26(b)(1). See Fed. R. Civ. P. 26(b)(1).
opened where affidavit provided evidence conflicting with witness testimony). Where the
deposition is re-opened because of newly discovered information, the questioning of the witness
is limited to those questions relating to the newly produced information. See Vincent, 2006 WL
726680, at *2; Keck, 1997 WL 411931, at *2–4; Dash, 2015 WL 4257329, at *6. In addition,
courts will also re-open a deposition “where the witness was inhibited from providing full
information at the first deposition.” Miller v. Massad-Zion Motor Sales Co., No. 3:12 CV 1363,
2014 WL 4979349, at *2 (D. Conn. Oct. 6, 2014) (internal quotations and citation omitted); see
Keck, 1997 WL 411931, at *1; Sentry Ins., 2012 WL 3288178, at *7.
2. Application to the Facts
As an initial matter, the Court points out that Plaintiff’s motion was untimely when it was
filed since the deadline for completion of fact discovery (after being extended by this Court three
times) was April 2, 2016. See March 2, 2016 Electronic Order (extending the discovery deadline
by 30 days and advising the parties that no further extensions would be granted). Although the
Court subsequently granted Defendants a brief extension of time — from May 11, 2016 to
May 20, 2016 — to comply with the Court’s April 27, 2016 Order [DE 65], such an extension
was granted only for this limited basis and did not serve to concomitantly extend Plaintiff’s time
to engage in discovery-related motion practice. Significantly, Plaintiff did not seek leave, either
prior to or contemporaneously with, the instant motion, to re-open discovery, nor has counsel
addressed the factors applicable to such an inquiry, which are grounded upon whether “good
cause” exists. See Torres v. Dematteo Salvage Co. Inc., No. CV14774, 2016 WL 845326, at *4
(E.D.N.Y. Mar. 2, 2016) (setting forth the six-factor test and recognizing that “[a] party seeking
to reopen discovery bears the burden of establishing good cause”); Thieriot v. Jaspan
Schlesinger Hoffman, LLP, No. 07-CV-5315, 2010 WL 4038765, at *6 (E.D.N.Y. Sept. 30,
2010) (quoting Pharmacy, Inc. v. Am. Pharm. Partners, Inc., No. 05-CV-776, 2008 WL
4415263, at *3 (E.D.N.Y. Sept. 24, 2008)). Nevertheless, given the passage of time, the Court
will address the merits of Plaintiff’s motion.
The gravamen of Plaintiff’s argument in support of re-opening the depositions of DA
Spota, Chief Ewald and ADA Constant rests primarily on the premise that the documents
produced by Defendants in response to this Court’s April 27, 2016 Order revealed new
information upon which each of these witnesses should be questioned. See DE 67 at 2.
However, the court is not convinced that the information set forth in these additional materials is
“new.” Rather, a review of the Complaint, the Amended Complaint, the deposition excerpts and
prior Orders of this Court supports the alternative conclusion that such information amplifies and
perhaps confirms certain information already in Plaintiff’s possession concerning these three
former ADAs. See Compl. ¶ 9 (referring a “dark skinned female of South Asian national
origin”); Am. Compl. ¶ 9 (noting that the NYSDHR probable cause determination referenced a
“dark skinned female of South Asian national origin” as the only other ADA who was terminated
by the Suffolk County DA in 2013); DE 42 ¶ 5 ( February 11, 2015 Minute Order recognizing
that “In response to the Court’s inquiry, plaintiff’s counsel confirmed that the plaintiff is aware
of specific Assistant District Attorneys who purportedly engaged in conduct more egregious than
the plaintiff and who were not disciplined at all or not disciplined as severely as the plaintiff. I
have directed plaintiff’s counsel to confer with his client and to obtain the specific names of
these individuals. The Court finds that this information is relevant to plaintiff’s claim that she
was selectively disciplined. Plaintiff’s counsel can either serve an amended interrogatory or
work out this issue in an alternative manner with defendants’ counsel.”).
In addition, during the depositions of DA Spota, Chief Ewald and ADA Constant,
Plaintiff embarked upon a short line of questioning concerning the performance issues and
terminations/resignations of Hettiarachchi, Farrell and Onorato. See, e.g., DE 68, Ex. A
(Excerpts from depositions of DA Spota, Chief Ewald and ADA Constant). Notwithstanding
these inquiries, Plaintiff appears to have made the decision to forego further development of this
inquiry despite having had the opportunity to do so. For example, during ADA Constant’s
deposition the following colloquy took place:
How many people have you told they are terminated?
One. No, two, Ms. Thompson and Ms. Hettiarchi [sic]
Let’s start with that. And what other people have been terminated by the office
that you have been involved in the decision to terminate?
Didn’t he resign?
He did, but he would have been terminated.
DE 68, Ex. A. This excerpt illustrates that although ADA Constant expressed that she had been
involved in the termination of Hettiarachchi, Plaintiff did not ask any follow-up questions as to
the nature and circumstances surrounding Hettiarachchi’s termination. Relevant follow-up could
have provided the information that Plaintiff now seeks to obtain through the re-opening of
Similarly, Plaintiff abandoned a more granular line of questioning during the depositions
of both DA Spota and Chief Ewald related to inquiries concerning Onorato and Farrell
respectively.3 Again, had Plaintiff more fully developed the inquiry at that point, additional
relevant information could have been obtained. The deposition excerpts provided make clear,
however, that Plaintiff was presented with certain information concerning the overall facts and
circumstances surrounding each individual’s termination or resignation from the Suffolk County
DA’s Office. As such, although the documents which were turned over to Plaintiff
approximately five months later may have amplified the basic information which was obtained
during these depositions, it is inappropriate to characterize the information contained within the
documents — which dealt solely with Hettiarachchi, Farrell and Onorato — as “new”
information that would otherwise warrant re-opening these depositions. See Dash, 2015 WL
4257329, at *6 (denying defendant’s request to re-open deposition where “Defendant’s counsel
had the opportunity to examine Dash with follow-up questions regarding the other drives that he
testified he purchased and used during the relevant period. Although Plaintiff made reference to
a number of external drives during his deposition, Seagate’s counsel apparently did not probe
further into these responses. . . .”; Official Comm. of Unsecured Creditors of Exeter Holdings,
Ltd. v. Haltman, No. CV135475, 2016 WL 1180194, at *1 (E.D.N.Y. Mar. 25, 2016) (denying
Plaintiff’s motion to re-open deposition to “inquire as to the contents of an affidavit” where
“Plaintiff had the opportunity to depose [Defendant] regarding his authority and role at Exeter
during the original deposition” and concluding that “this is not a case where Plaintiff was
inhibited at the original deposition from addressing [Defendant’s] role and authority at Exeter.”);
Miller v. Massad-Zion Motor Sales Co., No. 3:12 CV 1363, 2014 WL 4979349, at *3 (D. Conn.
Oct. 6, 2014) (“[P]laintiff is not entitled to reopen the deposition with respect to the handwritten
The Court’s analysis is inhibited to the extent that neither party provided it with a
complete copy of the deposition transcripts at issue. Rather, only excerpts that the parties
deemed relevant to this inquiry were supplied.
notes, in that she already was in possession of them prior to defendant Zion’s deposition and thus
could have inquired about them had she chosen to do so.”).
Although Plaintiff cites this Court’s decisions in Ganci v. U.S. Limousine Serv., Ltd., and
Official Comm. of Unsecured Creditors of Exeter Holdings, Ltd. v. Haltman, as well as
Magistrate Judge Mann’s decision in Sentry Ins. v. Brand Mgmt. Inc., to support her position
that the depositions should be re-opened because “new documents have been produced that
contain information highly relevant to Plaintiff’s claims,” these cases are distinguishable from
the facts here and therefore warrant a different result. See e.g., Ganci, 2011 WL 4407461, at *2
(deposition re-opened to permit inquiry into information received in response to particular FOIL
requests not otherwise available during initial deposition); Official Comm. of Unsecured
Creditors of Exeter Holdings, Ltd. v. Haltman, No. CV 135475, 2016 WL 1180194, at *1
(E.D.N.Y. Mar. 25, 2016), at *4 (permitting deposition to be re-opened to address purportedly
new information “contained in the boxes produced after [defendant’s] deposition” based upon
defendant’s “inability at the original deposition to recall reviewing documents from the business
files of Exeter.”); Sentry Ins., 2012 WL 3288178, at *8 (granting plaintiff’s motion to re-open
defendant’s deposition where defendant “unjustifiably failed to produce [the documents at issue]
at his first deposition”).
Notwithstanding Plaintiff’s insistence that the documents produced in response to this
Court’s April 27, 2016 Order constitute newly discovered evidence, the Court respectfully
disagrees. Rather, the basic information set forth in these documents could have been gleaned or
at least addressed during the respective depositions of DA Spota, Chief Ewald and ADA
Constant. Indeed, as noted, Plaintiff’s counsel engaged in a relevant line of questioning
concerning Hettiarachchi, Farrell and Constant. Therefore, counsel could have probed these
matters further had he sought to do so. The mere fact that Plaintiff was provided additional
documents containing further detail regarding a factual area previously known to and addressed
(to a limited extent) by Plaintiff during the original depositions is not tantamount to receiveing
new information sufficient to re-open these depositions. See Dash, 2015 WL 4257329, at *6
(denying defendant’s request to re-open plaintiff’s deposition where “the facts concerning
Plaintiff’s purchase and use of other external drives were available to Defendant’s counsel
during Plaintiff’s deposition” and “find[ing] that counsel either neglected or affirmatively opted
to forego this area of inquiry”); Miller, 2014 WL 4979349, at *3
Further, to the extent Plaintiff seeks to re-open DA Spota’s deposition based solely upon
an alleged inconsistency between the “single African American candidate who rejected the ADA
position” (as reflected in the May 20, 2016 letter from Defendants’ counsel, DE 67, Ex. 4), and
DA Spota’s testimony that “‘we had many turn us down,’” and the “‘common refrain’ from
African American candidates is that “‘they cannot afford to come to Suffolk County,’” id., Ex. 5,
the Court finds the rationale insufficient in light of the minimal relevance of this specific
information to Plaintiff’s claims. Put another way, although this inconsistency may bear on
DA Spota’s ultimate credibility, it does not strike at the heart of Plaintiff’s allegations.
Therefore, to re-open DA Spota’s deposition for the singular purpose of clarifying this
inconsistency, would, in this Court’s view, outweigh any potential benefit that could be
otherwise achieved. See Sentry Ins., 2012 WL 3288178, at *8.
For the foregoing reasons, Plaintiff’s motion to re-open the depositions of Defendants
DA Spota, Chief Ewald and non-party Constant is DENIED.
Dated: Central Islip, New York
March 27, 2017
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge
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