Caputi v. Topper Realty Corp. et al
Filing
47
ORDER granting in part and denying in part 43 Motion for Discovery and denying 46 Motion to Strike. For the reasons set forth in the attached Order, Defendants' motion is granted in part and denied in part, and Plaintiff's motion is denied. Ordered by Magistrate Judge Steven I. Locke on 7/9/2015. (Walsh, Kenneth)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
DOREEN CAPUTI,
-against-
Plaintiff,
ORDER
14-cv-2634(JFB)(SIL)
TOPPER REALTY CORP., and BRIAN
TOPPER,
MARILYN
TOPPER,
and
SHARON TOPPER, in their individual and
professional capacities,
Defendants.
----------------------------------------------------------------x
LOCKE, Magistrate Judge:
Plaintiff Doreen Caputi (“Plaintiff” or “Caputi”) commenced this action against
Defendants Topper Realty Corp., Brian Topper, Marilyn Topper, and Sharon Topper
(collectively, “Defendants”), alleging violations of the Fair Labor Standards Act
(“FLSA”) and New York Labor Law (“NYLL”). Presently before the Court is a letter
motion by Defendants, DE [43], seeking an Order: (i) compelling Plaintiff to appear
for two additional hours at her continued deposition, allowing Defendants more time
to inquire about emails identified at Plaintiff’s initial deposition; and (ii) awarding
Defendants costs incurred in taking Plaintiff’s continued deposition. Plaintiff filed a
letter in opposition to Defendants’ motion, DE [44], to which Defendants filed a reply,
DE [45], without leave of the Court. Plaintiff then filed a letter motion, DE [46],
seeking an Order striking Defendants’ reply.
For the reasons set forth herein,
Defendants’ motion to compel is granted in part and denied in part. Plaintiff’s motion
to strike is denied.
1
I.
Background
A. Defendants’ Prior Motion to Compel
Familiarity with the underlying facts of this case, which were discussed in
detail in the Court’s February 25, 2015 Order, DE [32], is presumed. Defendants
previously filed a letter motion on May 15, 2015, DE [37], seeking an Order: (i)
compelling Plaintiff to produce a notebook that allegedly includes information
concerning her claims in this action; (ii) compelling Plaintiff to provide authorizations
for access to medical records that predate her termination; (iii) granting leave to
continue Plaintiff’s deposition on various topics; (iv) awarding Defendants costs and
attorneys’ fees incurred in making their prior motion; and (v) imposing a sanction on
Plaintiff in the form of requiring her to pay the stenographer fees at her continued
deposition, as well as any attendant costs and attorneys’ fees.
For the reasons set forth in the Court’s May 22, 2015 Order, DE [39], the Court
allowed for Plaintiff’s continued deposition, on the condition that it not exceed three
hours in length and be limited in scope to: (i) the circumstances surrounding, and
Plaintiff’s testimony concerning, the notebook; and (ii) documentation concerning
mitigation of damages that was produced following Plaintiff’s first deposition. For
the reasons set forth herein, the Court now grants Defendants two additional hours
at Plaintiff’s continued deposition (for a total of five hours) in order to inquire about
emails Plaintiff sent to her ex-boyfriend, Paul DeMarco (“DeMarco”). The Court
denies Defendants’ motion to the extent that it seeks costs incurred in taking
Plaintiff’s continued deposition.
2
B. Plaintiff’s Discovery and Initial Deposition
In Plaintiff’s responses to interrogatories, Plaintiff identified DeMarco 1 as an
individual who Plaintiff believed may have knowledge of facts upon which she bases
her allegations. See Def. Ltr. Mtn. at Ex. “B.” At Plaintiff’s April 30, 2015 deposition,
the following exchange took place:
Q:
And your boyfriend, did you speak with him about
the lawsuit?
A:
He does know why I’m here, yes.
Q:
What is his name?
A:
My boyfriend now?
Q:
Yes.
A:
Chris.
Q:
What [sic] his last name?
A:
Milano.
Q:
How long have you been with him?
A:
Four months. And the boyfriend before I did share
e-mail with him because at one point, I didn’t have a
computer at home, so the Long Beach police officer
would have me send e-mails to him, because I didn’t
have a printer, so he’d print it for me, so he had
information on that.
***
Q:
What was his name?
A:
Paul DeMarco
Def. Ltr. Mtn. at Ex. “A.”
Later in her deposition, in describing DeMarco’s knowledge of the facts upon
which she bases her allegations, Plaintiff testified, “Just what I told you about the e-
Plaintiff incorrectly identified DeMarco as “Paul Demario” in her responses to
interrogatories. See Def. Ltr. Mtn. at Ex. “B.” At her deposition, Plaintiff clarified that Paul Demario
referred to her ex-boyfriend, DeMarco. Id. at Ex. “A.”
1
3
mails, that I e-mailed him to print for me, and that he was the one who told me to put
them on notice and start documenting to the best of my ability.” Id. Notwithstanding
Plaintiff’s testimony, during the course of discovery, Plaintiff never produced the
emails that she sent to DeMarco. To the contrary, on May 19, 2015, Defendants’
counsel emailed Plaintiff’s counsel, stating, “None of those emails were produced to
us.” Id. at Ex. “D.” Defendants demanded production of the emails. Id.
Defendants then renewed their demand for Plaintiff’s emails to DeMarco on
June 2, 2015, writing, “Plaintiff testified at pages 16-18 of her deposition that she
sent emails to her boyfriend with information regarding her claims in this lawsuit.
Defendants demand production of those emails.” Id. at Ex. “E.” On June 10, 2015,
Plaintiff’s counsel wrote, “All relevant non-privileged emails, including all emails
with information regarding Plaintiff’s claims, have been produced to Defendants.” Id.
at Ex. “F.”
On June 18, 2015, Defendants yet again requested Plaintiff’s emails to
DeMarco, writing, “no emails sent by Plaintiff to her then-boyfriend [Paul DeMarco]
were produced to defendants. . . . We are entitled to review these emails prior to
Plaintiff’s continued deposition.” Id. at Ex. “G.” Defendants reserved their right to
seek judicial intervention in the event the parties were unable to resolve this issue.
Id. In response, on June 20, 2015, Plaintiff’s counsel wrote:
As for the emails to/from Ms. Caputi’s boyfriend, you have asked
for this multiple times and I have responded that such emails are
not in my possession and are not in Ms. Caputi’s personal email
inbox, which I have been given access to. If you cannot accept this
straight answer, go ahead and write to the court yet again and we
4
will respond with yet another affidavit confirming there are no
such documents.
Pl. Ltr. Opp. at Ex. 2.
Defendants now seek two additional hours at Plaintiff’s continued deposition
to inquire about the content of the emails that Plaintiff sent to DeMarco as well as
Plaintiff’s email preservation and search efforts. See Def. Ltr. Mtn. at 2. Specifically,
Defendants allege that certain relevant email evidence may have been spoliated, and
that they are entitled to discovery of Plaintiff’s conduct. Id. at 3 n.2.
In opposition, Plaintiff submitted a declaration from Samuel Veytsman, Esq.
(“Veytsman Decl.”), in which Mr. Veytsman declared that he searched Plaintiff’s
personal email account, and that he “located no emails relevant to this matter which
have not been produced to Defendants, and no relevant emails between Plaintiff and
Paul DeMarco, her former boyfriend.” Veytsman Decl. at ¶ 2. Plaintiff also argues
that Defendants failed to “meet and confer” prior to making the instant motion in
violation of Fed. R. Civ. P. 37(a)(2)(B) and Local Rule 37.2. See Pl. Ltr. Opp. at 2.
II.
Legal Standard
Defendants may discover relevant, non-privileged information which appears
reasonably calculated to lead to the discovery of admissible evidence.
See
Fed. R. Civ. P. 26(b)(1). In addition, “unless otherwise stipulated or ordered by the
court, a deposition is limited to 1 day of 7 hours.” Fed. R. Civ. P. 30(d)(1). However,
“[t]he court must allow additional time consistent with Rule 26(b)(2) if needed for a
fair examination of the deponent.” Finkelstein v. Sec. Indus. Automation Corp., No.
05-cv-5195, 2006 WL 3065593, at *1 (E.D.N.Y. Oct. 27, 2006) (emphasis in original)
5
(quoting Fed. R. Civ. P. 30(d)(2)). “[T]he decision whether or not to enlarge the time
for examination of a deponent is a factual decision, depending on the circumstances
of the individual case.” Carmody v. Vill. of Rockville Ctr., No. 05-cv-4907, 2007 U.S.
Dist. LEXIS 54736, at *7 (E.D.N.Y. July 27, 2007) (quoting Calderon v. Symeon, No.
06-1130, 2007 U.S. Dist. LEXIS 20510, at *3 (D. Conn. Feb. 2, 2007)).
III.
Discussion
Applying the standards outlined above, the Court grants in part and denies in
part Defendants’ motion to compel, DE [43]. The Court denies Plaintiff’s motion to
strike Defendants’ reply, DE [46].
A.
Motion to Compel Two Additional Hours of Deposition
The Court grants Defendants’ motion to the extent that it seeks additional time
at Plaintiff’s continued deposition to allow Defendants to inquire about the
preservation, production, and possible spoliation of emails that Plaintiff sent
DeMarco.
A party alleging spoliation of evidence must establish:
(1) [T]hat the party having control over the evidence had an
obligation to preserve it at the time it was destroyed; (2) that the
records were destroyed ‘with a culpable state of mind’; and (3) that
the destroyed evidence was ‘relevant’ to the party’s claim or
defense such that a reasonable trier of fact could find that it would
support that claim or defense.
Williams v. N.Y. City Transit Auth., No. 10-cv-882, 2011 WL 5024280, at *4 (E.D.N.Y.
Oct. 19, 2011) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d
99, 107 (2d Cir. 2002)). A party is entitled to discovery that is relevant to its claims
of spoliation. See, e.g., Residential Funding Corp., 306 F.3d at 112 (allowing for
6
additional discovery, including “appropriate depositions,” as to the plaintiff’s state of
mind and prejudice to the defendant when the plaintiff withheld emails).
Here, Plaintiff’s deposition testimony conclusively establishes that she sent
DeMarco emails containing information relevant to her present claims. See Def. Ltr.
Mtn. at Ex. “A.” Plaintiff’s pre-deposition failure to produce, and her post-deposition
inability to locate, any such emails to DeMarco warrants additional discovery as to
the emails’ content and disposition. Contrary to Plaintiff’s argument, Mr. Veytsman’s
declaration that, upon searching Plaintiff’s email account, he identified “no relevant
emails between Plaintiff and Paul DeMarco” does not negate the need for the
discovery Defendants seek. See Veytsman Decl. at ¶ 2. To the contrary, in light of
Plaintiff’s sworn testimony that she sent DeMarco emails to “start documenting”
information relevant to her present claims, see Def. Ltr. Mtn. at Ex. “A.,” Mr.
Veytsman’s inability to locate any such emails raises concern about their disposition,
and Defendants are entitled to inquire as to their content and status.
Likewise, Plaintiff’s argument that Defendants’ motion must be dismissed for
failure to meet and confer is unavailing. 2 See Pl. Ltr. Opp. at 3. “Rule 37’s purpose
is to require parties to ‘make a genuine effort to resolve the dispute’ before resorting
to a court’s involvement.” Care Envtl. Corp. v. M2 Techs. Inc., No. 05-cv-1600, 2006
WL 1517742, at *3 (E.D.N.Y. May 30, 2006) (quoting Tri-Star Pictures, Inc. v. Unger,
Plaintiff’s argument that Defendants’ present motion is a “motion for reconsideration
disguised as a ‘motion to compel’ ” is similarly unavailing. See Pl. Ltr. Opp. at 1. When Defendants
submitted their prior motion to compel on May 15, 2015, DE [37], they had not yet specifically
demanded the emails that Plaintiff referenced at her deposition. Rather, Defendants first demanded
Plaintiff’s emails to DeMarco on June 19, 2015. See id.; Def. Ltr. Mtn. at Ex. “D.” As such, this Court’s
May 22, 2015 Order, DE [39], did not address the relief sought in Defendants’ present motion.
2
7
171 F.R.D. 94, 99 (S.D.N.Y. 1997)).
Following Plaintiff’s initial deposition,
Defendants repeatedly demanded production of the emails that Plaintiff sent to
DeMarco, “or an explanation as to why such documents have not yet been produced.”
Def. Ltr. Mtn. at Ex. “G.” In response, Plaintiff’s counsel wrote, “I have responded
that such emails are not in my possession and are not in Ms. Caputi’s personal email
inbox, which I have been given access to. If you cannot accept this straight answer,
go ahead and write to the court yet again . . ..” Pl. Ltr. Opp. at Ex. 2. Accordingly,
Plaintiff’s contention that Defendants failed to make a genuine effort to resolve the
present dispute without seeking judicial intervention is without merit.
For the foregoing reasons, Defendants’ motion is granted to the extent that it
seeks two additional hours at Plaintiff’s continued deposition to inquire as to the
content and status of Plaintiff’s emails to DeMarco.
B.
Motion for Costs
The Court denies Defendants’ motion to the extent that it seeks to recover costs
associated with Plaintiff’s continued deposition. As an initial matter, this Court
previously denied Defendants’ request for costs incurred as a result of Plaintiff’s
continued deposition as it relates to her notebook on the grounds that Plaintiff has
asserted a colorable basis for objecting to its production. See DE [39]. Similarly,
there is presently no evidence to suggest that Plaintiff has acted in bad faith or that
Defendants have been prejudiced such that sanctions are warranted pursuant to Fed.
R. Civ. P. 30(d)(2). To the contrary, Plaintiff’s continued deposition is necessary to
8
determine the reason(s) for Plaintiff’s failure to produce her emails to DeMarco, and
whether Defendants were prejudiced as a result.
The case that Defendants cite in support of their request for costs, Owen v. No
Parking Today, Inc., 280 F.R.D.106 (S.D.N.Y. 2011), is distinguishable. In Owen, the
Court awarded the plaintiff attorney’s fees that it was forced to incur because the
defendant “repeatedly failed to respond fully to [the plaintiff’s] discovery requests and
misled plaintiff as to the nature of the search it had conducted.” Id. at 111. Here,
neither Plaintiff’s bad faith, nor prejudice to Defendants has been established.
For the foregoing reasons, Defendants’ motion is denied to the extent that it
seeks to recover costs incurred as a result of Plaintiff’s continued deposition.
C.
Motion to Strike Defendants’ Reply
The Court denies Plaintiff’s Motion to Strike Defendants’ reply, DE [46].
Courts have “broad discretion to determine whether to overlook a party’s failure to
comply with local rules.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 108 n.2 (2d Cir.
2006) (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)). While
Plaintiff is correct that Defendants’ reply violates this Court’s Individual Motion
Practice Rule 3(A)(i), see DE [46], the Court declines to strike Defendants’ reply
because it did not contain novel arguments or present new evidence, and the result
of the present motion would have been the same even if Defendants had not
submitted their improper reply.
Nevertheless, the parties are again instructed to
consult this Court’s Individual Rules before making submissions to the Court.
9
IV.
Conclusion
Based on the foregoing, Defendants’ motion to compel is granted in part and
denied in part, as follows: (i) Defendants’ request to continue Plaintiff’s deposition
for two additional hours (for a total of five hours) to inquire about emails Plaintiff
sent to DeMarco is granted, and (ii) Defendants’ request to recover costs incurred as
a result of Plaintiff’s continued deposition is denied. Plaintiff’s motion to strike is
denied.
Dated:
Central Islip, New York
July 9, 2015
SO ORDERED
s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
10
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?