Schoolcraft v. The City Of New York et al

Filing 191

ENDORSED LETTER addressed to Judge Robert W. Sweet from Brian E. Lee dated 10/30/2013 re: We respectfully request that the following application be added to the calendar for November 13, 2013, when other motions will also be heard in this case. My ECF filing of this was rejected, as a motion for a protective order must be a formal motion. ENDORSEMENT: SO ORDERED. (Signed by Judge Robert W. Sweet on 10/31/2013) (ama)

IVONE, DEVINE & ..JENSEN, LLP
ATTORNEYS AT LAW
2001 MARCUS AVENUE' SUITE N 1 00
LAKE SUCCESS, NEW YORK 1 1042

MINDY E. PLOTKIN
DEBORAH STURM
ANTHONY M. MAFFIA

The Hon. Robert W. Sweet, U.s.D.J.
United States District Court
500 Pearl Street
New York, New York 10007
Re:

Schoolcraft v The City of New York, et al
Docket No. 10 CV 6005 (RWS)

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Honorable Sir:
We respectfully request that the following application be added to the calendar for
November 13, 2013, when other motions will also be heard in this case. My ECF filing of
this was rejected, as a motion for a protective order must be a formal motion. The response
I received from ECF was as follows: NOTE TO ATTORNEY TO RE-FILE DOCUMENT
NON-ECF DOCUMENT ERROR. Note to Attorney Brian E Lee. Document No. [188] Letler. This
document is not filed via ECE The Court permits the filing ofletters including certain types ofletter
motions, a Motion for a Protective Order must be formally filed.
We request that the Court accept this letter in lieu of a formal motion for this relief.
As mentioned above, other matters are before the Court for that date, and in order to keep
the depositions moving, this is the most expeditious manner to handle this application.
This is a joint motion for a protective order from the medical defendants (Jamaica
Hospital Medical Center; Dr. lsakov and Dr. Aldana-Bernier) concerning the method of
recording the depositions of our clients. While a properly recorded video deposition is
clearly permissible under the Federal Rules, it is our contention that the method utilized
by the attorney for the plaintiff does not comply with those Rules and should not be
permitted in this case.
Specifically, these defendants oppose the recording of these depositions by a person
disqualified to be an officer for the deposition, the attorney for the plaintiff, on a home
video camera. If plaintiff's counsel wants to hire a professional videographer (as the

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Re: Schoolcraft v City of New York, et al.

Page 2

attorneys for the City of New York did for the deposition of the plaintiff), we would have
no objection.

Background: At the scheduled deposition of Dr. Aldana-Bernier on October 25,2013,
the lead attorney for the plaintiff, Nat Smith, brought his home Sony Handycam video
camera, and intended to use this to videotape the deposition. Prior to this time, Mr. Smith
had not served a Notice of Intent to Videotape that deposition as required by Rule 30
(b) (3) 1. The attorney for Dr. Aldana-Bernier objected, primarily because the intent to record
the deposition in that fashion has not been served, and when the parties were unable to
obtain a ruling, the deposition was adjourned.
The Rules that Apply:
Federal Rules of Civil Procedure Rule 30(b), provides as follows in pertinent part:
(3) Method of Recording.
(A) Method Stated in the Notice. The party who notices the
deposition must state in the notice the method for recording the
testimony. Unless the court orders otherwise, testimony may be
recorded by audio, audiovisual, or stenographic means. The noticing
party bears the recording costs. Any party may arrange to transcribe
a deposition.
(B) Additional Method. With prior notice to the deponent and other
parties, any party may designate another method for recording the
testimony in addition to that specified in the original notice. That
party bears the expense of the additional record or transcript unless
the court orders otherwise.
Federal Rules of Civil Procedure Rule 28(b), provides as follows in pertinent part,
that a deposition must be taken before an officer authorized to administer oaths by law, but
Rule 28(c) provides that an attorney for the parties is disqualified.
Rule 26(c) permits the making of a motion for a protective order concerning the
means or methods of conducting discovery.

Essential Facts: On October 25, 2013, the deposition of the defendant Dr. Aldana-

Mr. Smith took the position on October 25, 2013, that he had served Notice on the
Parties via email. That is moot at this point as he now as served Notices that intend to
comply with the Rule for subsequent depositions (see, Exhibit A)
I

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Bernier was scheduled to be held at the office of Nat Smith, the lead attorney for the
plaintiffs. That morning, Mr. Smith set up his home video recorder, a Sony Handycam,
and indicated his intent to videotape the deposition with that recorded. Mr. Smith had
used that same device in an earlier deposition of Deputy Chief Marino, for which a Notice
had been served of his intent to videotape the deposition.
The attorney for Dr. Aldana-Bernier objected to this for a number of reasons,
including the fact that plaintiff had not served a proper Notice setting for this method of
recording the deposition. It was also noted that the methodology of the attorney for the
plaintiff recording the deposition was improper, and that in essence, the requirements of
Rule 28 were thus not complied with.
Subsequently, after the deposition was adjourned so that this matter could be
explored further, the attorney for the plaintiff served two notices as to (1) the deposition
of Dr. Aldana-Bernier; and (2) all subsequent defense depositions. These are attached
hereto as Exhibit A. Mr. Smith in the cover email set forth as follows:
In addition, please find a general notice of depositions that
provides for the video method and a notice for the deposition
of Dr. Bernier for November 20th that also provides for the
video method. I intend to proceed in the same fashion as I did
in the Marino deposition, by keeping the video on the witness,
not zooming in or out during the deposition, and keeping it on
while the deposition is going forward on the record.

Argument: The recording of a deposition by the attorney for a party is strictly
prohibited by Rule 28(c). The video recording must be made by an officer pursuant to
Rules 28 and 30, and it is expressly stated in Rule 28(c) that an attorney for a party is
disqualified from being that officer.
In the earlier deposition of Deputy Chief Marino, the plaintiff operated the video
camera as he intends to do in all subsequent depositions. In that case, the requirements
and safeguards of Rule 30(b)(5) were not complied with. There was no officer appOinted
or deSignated under Rule 28. None of the technical requirements of Rule 30(b)(5)(i)
through (v) were complied with. Indeed, because of the different layers of confidentiality
with the documents used at the deposition, there was an almost humorous attempt to turn
the machine on and off and to characterize at which time what level of confidentiality
applied to that testimony.
There were no microphones on the table, other than the microphone on the
Handycam. Usually all counsel, or at least the ones asking questions and defending the
deposition, as well as the witness, are provided with such. There will be no way to
ascertain who was speaking on the tape at any particular time unless it was the witness

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Re: Schoolcraft v City of New York, et al.

himself.
In a normal deposition in which a proper officer is videotaping the proceedings, all
of the Rule 30(b)(i) through (v) information is properly recorded, and the recording has a
counter that allows for easy reference for rulings and editing. If portions of the recording
are found inadmissible, for instances, the order would read that the testimony at counter
00112 through 00243 is stricken. A professional recording would be able to be quickly
edited in that fashion.
After the deposition, we have not been provided with a copy of the recording that
was made.
In Carvalho 1.1• Reid, 193 F.RD. 149, 152 (S.D.N.Y.,2000), the court refused the request
to videotape a deposition under similar circumstances. Magistrate Judge Gershon ruled
as follows with regard to those issues:
Plaintiff appeared at the offices of defendant1s counsel on
November 21, 1994, and sought, over the objection of defense
counsel, to videotape the deposition using her own videotape
equipment. The parties sought a telephonic ruling. Plaintiff1s
request to videotape the deposition was denied for failure to
provide proper notice to the defendant, as required by Rule
30(b)(3) of the Federal Rules of Civil Procedure, and for failure
to arrange to have the videotaping conducted by an
appropriate person, as required by Rules 30(b)(4) and 28(c).
Judge Leisure also ruled similarly in a subsequent deposition in that case. 193 F.RD at 153.
What we are setting forth is that certain minimum standards must be met in the
video recording. For instance, other courts have required standards for the equipment and
the recording. Thus, the quality of equipment should be very high, at least as high as that
provided by a court reporter, Jarosiewicz v. Conlisk, 60 F.RD. 121, 17 Fed. R Servo 2d 1583
(N.D. Ill. 1973). The recording device should be reliable and capable of producing clear
recordings, Jones v. Evans, 544 F. Supp. 769 (N.D. Ga. 1982), producing a quality of
recording which is at least as high as that provided by a court reporter." Kallen v. Nexus
Corp., 54 F.RD. 610,614, 15 Fed. R Servo 2d 1271, 16 A.L.R Fed. 963 (N.D. Ill. 1972). The
result should be an accurate and trustworthy record. Barham v. IDM Corp., 78 F.RD. 340
(N.D. Ohio 1978). A detailed log/ index of the proceedings should be made, including the
subject matter being discussed, the exhibits, the attorneys, and the witness. Kallen V. Nexus
Corp., 54 F.RD. 610, 15 Fed. R Servo 2d 1271, 16 A.L.R Fed. 963 (N.D. Ill. 1972). The latter
case also suggests the provision of separate microphones for the participants in the
deposition. ld, 54 F.RD AT 614.
II

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Re: Schoolcraft v City of New York, et al.

The recording as proposed by plaintiff has none of these safeguards.
Furthermore, the Kallen court set forth reasons why the operator of the equipment
should be independent (54 F.R.D. at 613-14):
The independence and integrity of the court reporter has been
a traditional protection of the integrity of the record produced.
To expect attorneys in hotly contested litigation to undertake,
in addition to the active pursuit of their clients! interests, the
technical and mechanical responsibilities of operating
recording equipment of any complexity, would be undesirable
and diminish the accuracy, if not the integrity, of the recording.
An independent operator of recording equipment should
provide further assurance of the integrity of the recording and
relieve the attorneys completely, to represent their clients.
For these reasons, we respectfully request that the protective order be granted,
precluding plaintiff's attorney from videotaping the depositions of the medical defendants.

CertWcation: I hereby certify, pursuant to Rule 26 (c)(l), that I have conferred in good
faith with Nat Smith, the attorney for the plaintiff, to resolve this dispute, without court
action,
Very truly yours,

t/~~F~
BRIAN E. LEE/9495
BEL/mnps
The application has been joined in by both Bruce Brady, the attorney representing Dr.
Aldana-Bernier, and by Gregory Radomisli, the attorney representing Jamaica Hospital.