Carling v. Peters
Filing
192
OPINION AND ORDER: Accordingly, for all the forgoing reasons, defendant's application to compel responses to her second set of interrogatories (Docket Item 159) is denied in all respects. (Signed by Magistrate Judge Henry B. Pitman on 4/24/2012) Copies Sent By Chambers. (cd)
USDCSDNY
DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELECIROl\i1CALLY mED
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DOC#:
FRANCIS CARLING,
Plaintiff,
-a gainst-
10 Ci v. 4573 ( PAE) (HB P)
OPINION
AND ORDER
KRISTAN PETERS,
Defendant.
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PITMAN, United States Magistrate Judge:
Defendant moves to compel answers to her second set of
interrogatories (Docket Item 159).
For the reasons set forth
below, the motion is denied in all respects.
Defendant's motion suffers from a number of deficien
cies.
First, defendant has not submitted a memorandum of law in
support of motion, as required by Local Civil Rule 7.1(a) (2).1
Second, prior to making the motion, defendant did not
require an informal conference as required by Local Civil Rule
37.1 and Rule 2(A) of my individual rules of practice.
Third, the interrogatories themselves are precluded by
Local Civil Rul 33.3.
2--::
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Rule 33.3 provides:
1Curiously, defendant cites plaintiff's failure to submit a
a memorandum of law as a basis for disregarding plaintiff's
opposition, yet she blithely ignores the same deficiency in her
own papers.
(a) Unless otherwise ordered by the Court, at the
commencement of discovery, interrogatories will be
restricted to those seeking names of witnesses with
knowledge of information relevant to the subject matter
of the action, the computation of each category of
damage alleged, and the existence, custodian, location
and general description of relevant documents, includ
ing pertinent insurance agreements, and other physical
evidence, or information of a similar nature.
(b) During discovery, interrogatories other than
those seeking information described in paragraph (a)
above may only be served (I) if they are a more practi
cal method of obtaining the information sought than a
request for production or a deposition, or (2) if
ordered by the Court.
(c) At the conclusion of other discovery, and at
least 30 days prior to the discovery cut-off date,
interrogatories seeking the claims and contentions of
the opposing party may be served unless the Court has
ordered otherwise.
Defendant's second set of interrogatories seek information that
goes far beyond that permitted by Local Civil Rule 33.3, and
defendant makes no effort to justify them as a more efficient way
of obtaining the information she seeks.
Rather, defendant claims
that she is entitled to serve the interrogatories because plain
tiff was evasive and non-responsive at his deposition and that
she was, therefore, unable to ask all of her questions.
The
fundamental assumption underlying this argument is flawed.
The
presumptive seven-hour time limit on depositions set forth in
Fed.R.Civ.P. 30(d) (1) is precisely what it appears to be -- a
limit on discovery.
In the absence of an agreement between the
2
parties, or a court order, the seven-hour time limit is control
ling.
Defendant's assumption that interrogatories seeking
substantive information are always available as a supplement to a
seven-hour deposition is not supported by citation to any Rule,
Advisory Committee Note or case and is fatally inconsistent with
the notion
guilty
a deposition of limited duration.
If a party is
misconduct at a deposition, the appropriate remedies
include a telephonic application to my Chambers during the
deposition or a motion to continue the deposition.
even if inter
In addition,
s were available as a self-help remedy for
improper conduct at a deposition, defendant has not offered a
shred of evidence that plaintiff engaged in any improper conduct
here.
Beyond her hyperbolic characterizations, defendant has not
offered any evidence of misconduct by plaintiff.
Finally, defendant's motion is also deficient because
she failed to meet and con
r with plaintiff informally to
resolve the dispute as requi
by Fed.R.Civ.P. 37 (a) (1).
In
that regard, defendant has submitted with her motion an e-mail to
plaintiff dated in March 1, 2011 seeking to confer with him
concerning her interrogatories.
In the
rst email, defendant
stated:
Please call me by 12 noon tomorrow to discuss your
failure to provide re
to most of my
interrogatory requests.
rnatively, please email by
3
5:30 pm and let me know when in the next two days you
are available to discuss your failure to produce
interrogatory responses.
Also, with respect to your claim of privilege regarding
the letter you wrote to Judge Rankin, please identify
the name of the privilege (ie: attorney-client privi
lege?) and produce a privilege log by close of business
tomorrow.
Plaintiff responded to the email 12 minutes later, stating:
Are we talking settlement, or aren't we? Or was this
just another of your elaborate ruses to waste my time?
I'm free tomorrow afternoon, and have no objection to
your requesting a conference with Judge Pitman. Either
send me the settlement papers, or request the confer
ence; otherwise, leave me in peace to work on my papers
on the sanctions motions. Other business can wait
until those motions are fully submitted.
The first sentence of the second paragraph indicates a clear
willingness to discuss the issue the following day.
Neverthe
less, defendant describes plaintiff's response as a "refus[al] to
confer about [plaintiff's] discovery obligations."
Defendant's
statement is contradicted by the documentary record and does not
justify the filing of her motion without a good faith effort to
resolve her disputes with plaintiff without judicial
intervention.
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Accordingly, for all the forgoing reasons, defendant's
application to compel responses to her second set of
interrogatories (Docket Item 159) is denied in all respects.
Dated:
New York, New York
April 24, 2012
SO ORDERED
HENRY PITMAN
United States Magistrate Judge
Copies transmitted to:
Francis Carling, Esq.
Suite 12BC
174 East 74th Street
New York, New York 10021
Kristan Peters, Esq.
Peters Hamlin LLC
Second Floor
1100 Summers Street
Stamford, Connecticut
06905
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