Schoolcraft v. The City Of New York et al

Filing 192

LETTER RESPONSE to Motion addressed to Judge Robert W. Sweet from Nathaniel B. Smith dated 11-11-13 re: 184 LETTER MOTION for Local Rule 37.2 Conference Reply to Pl. Opp. Dated 10/15/13 (Dkt. No. 181) addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 16, 2013. LETTER MOTION for Local Rule 37.2 Conference Reply to Pl. Opp. Dated 10/15/13 (Dkt. No. 181) addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 16, 2013. LETTER MOTION for Local Rule 37.2 Conference Reply to Pl. Opp. Dated 10/15/13 (Dkt. No. 181) addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 16, 2013. LETTER MOTION for Local Rule 37.2 Conference Reply to Pl. Opp. Dated 10/15/13 (Dkt. No. 181) addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 16, 2013. LETTER MOTION for Local Rule 37.2 Conference Reply to Pl. Opp. Dated 10/15/13 (Dkt. No. 181) addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 16, 2013. LETTER MOTION for Local Rule 37.2 Conference Reply to Pl. Opp. Dated 10/15/13 (Dkt. No. 181) addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 16, 2013. LETTER MOTION for Local Rule 37.2 Conference Reply to Pl. Opp. Dated 10/15/13 (Dkt. No. 181) addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 16, 2013. LETTER MOTION for Local Rule 37.2 Conference Reply to Pl. Opp. Dated 10/15/13 (Dkt. No. 181) addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 16, 2013.. Document filed by Adrian Schoolcraft. (Smith, Nathaniel)

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November 11,2013
llonLorable Robert W. Sweet
Llrrirted States District Judge
Southern District of New York
5C)0 Pearl Street
New York, New York 1007
Schoa'lc,raft v. The Ci,ty of New 'York, et al-,
l0-cv-6t')05 (RWS)
Dea.r Judge Sweet:

As one of-ptaintiff s courr,sel in l.his action, I am submitting this letter iLn
response to the Medical Defendant's rnotion fbr a protective orcler" In their letterrnoi.ion, the Medical Defendants argue, that rny'intended use o1'et video camera fior
the depositions of Def-endant Dr. Benrrier on Octob er 25, 2013 and Defbndant Dr.
Isal.rov on October 30, 2013 wai:i a prop€)r basis ftrr rellusing to go fcrrward with
these so-ordered dePositions.
The position is meritless. Numerous decision have held that an attorney can
use a video camera to record a rJeposition that is beinlg conductecl before an ofI'rr;ial
courl reporter, who is the officer takirrg the depositicxr pursuant to Itules 28 and 30
of the Federal Rules of Civil Pr,ocedure.

Background
On Octob er 25,2013, all the aft.omeys for the numerous parties in this acrLion
.ppeared at my office fbr Dr. Bernier's deposition, including the court reporter and
ttre witness. The attorney repre,senting Dr. Betnier, Paul F. Cal,[an, Etq., however,
pbjected to my use of the video camera, even though there was an <lfficial coutt
repofter present for the purpose: of taking the deposition, and re sed to permit the

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deposition to go fbrward.

Mr" Callan persisted in his objection, even though I agreerl to keep the video
trerined on the witness, not to alter or disrlort the image:, and to pr<lvide Mr. Callarn
wittr a copy of the video along v,'rith the official transcript of the deposition. Mr.
Callan, who has not filed a notice of alrpearance as counsel in this action, was not
present for the deposition of Detlendant Marino, whiclr I also vicleotaped in the
same fashion without objection. Nor cliclhe receive arn email that I had previously
sent to all appearing counsel in ''ruhich I infbnned counsel that [ ,was going to be
vide:otaping the lirst deposition iin the case of Defbndernt Marino. Although I also
inlormed Mr. Callan that Defenllant Marino's deposition was cc'nducted in the
same manner as I proposed goirrg foru,ard with Dr. Bernier's deposition, he
nevertheless continued to ntaintain his position and refused to go forward with the
deposition.

As a result, the parties sor,rght the Court's intenrention telephonically. Thr:
Courl, however, was not then ar,'ailable {br a ruling. l\nd after v',aiting for turo
hours, the parties agreed to adjourn ther cleposition. As a result, the plaintiff has
incurred unnecessary court reporter expenses and plaintifl's attorneys have wasted
their time appearing fbr the depr;sition o1'[)r'. Bernier on October 25,2013 and
preparing this opposition. Since the por;ition taken b'y Mr. Callan is meritless,
these costs should be imposed on him or his firrn"
The Law Permits Counse,l to Vicleotapte a [)epclsition Being Clonducled
BeJore an Official Court 'r?eporter

Nothing in the law prohitr,its an iirttorney liom using a video camera to rec,ord
a rJs,position that is being condur;ted properly before an official court reporter:.
Indeed, over forty years ago, when video technology'r/as first br:ing used in
litigation, the court in Marlboro Product,s Corp,, v. I'lc,rth America I'hilips Cctrp.,
55 I;.R.D. 487,489 (S.D.N.Y. 1972) aptly noted: "[]']his court iis not
persuaded that it is necessary al''ways - on, specifically, in this case - to have an
independent person running the recordin.g device."
Since then, numerous decisions have held that iln attomel' can
simultaneously videotape a deposition being conducted before a court reporter.
See, €.g., Maranville v Utah Va,t'. (Jniv.,2012 \\fL, 149)3888 (D. ]..ltah Apr.27,
2}ll2) ("Similarly, because an olficer will be recording the depositions
stenographically and the rules specifically contemplat.e videotaped depositions, the

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coull concludes that Plaintiff s oounsel rnay videotape the deposiitions."); Pioneer
Drit,e, LLC v. Nissan Diesel Am., lnc.,262 I1.R.D. 55'.2,555, 556 (D. Mont.2"00t))
("'fhe Federal Rules of Civil Procedure allow, at the very least, r;ounsel to
videotape a deposition in conceft with a stenographer recording it"); Hearn \'.
('permitting a
llilkins Township,2007 wL 21"55573 (W.D. Pa July
"25,2007")
plaintiff s employee to operate riocording, equipment att a depositrion where an
officer authorized pursuant to Rule 28 was also present); Anders'on v Dobson, 6i!.7
F Supp 2d 619,624 (W.D.N.C . 2007) (R:ule 28 was not violated when a part'y's
atrorney was the video recorder during;the deposition); Ott v. Sti.pe .Law Firm, lt59
F.R,D. 380, 381 (E.D. Okla. 1996) (notirng that if a vi,ieo depositiorr is otherrvise:
conducted in cornpliance with Fi.ule 30, I{ule 28 does not prohibit the party's
counsel from serving as videographer); )?ice's T'oyota World, In<:. t'. Southeatst
Toy,ota Distributors, Inc., 114 F.R.D.647,651 (:M.D.I\I.C. 1987) ("llule 28(a) does
not disqualifo plaintiff's attorns',,, from running the vicleotaping equipment lat a
deposition].")
The Rice court explained why the law is crystal clear on this issue:

Rule 28(c), which disqualilies peruons fiorn taking a deposition if thel' have
an interest in the action, is importa t for stenographic depositions because:
the operator interprets wfrat people say into words and puts them on paper. It
has markedly less signif-r<.:ance rvhLen the attorney is merely'nrLaking a
stationary video recording a deprosition which can be easily duplicated and
given to all parlies. That procedure dcles not inr,,olv'e any intenpretatior:L on his
part and conespondingly diminishes concern of a conflict. of interest.
Ric<?, 1 14

F.R.D. at 651.

Any complaints about the:: method of the video recording of the depositiorr
should be addressed after the deposition has been conducted, rvhen a party can use
the court reporter's transcript or the videro to raise an objection. Incleed, Rule 3Cl
specifically provides fbr remedies lbr inaccurate reco.rding. Pioneer Drive, L,LC v.
I,,lissan Die,sel Am., Lnc.,262 F.I{.D. 552,555-56 (D. IMont. 2009) ("A deposed
peu1.y or counsel concerned abor.rt accura.cy or image rnanipulation can seek a
protective order, can choose an additional method to record the deposition, or can
mo'\/e after the f-act to strike the recording.") Thus, the stenograprhic transcript is
available for later courl ruling and cures an1' other concern ab<luLt the accuracy of
testimony. Id. at 555-56 (the presence ollcourt repofter providecl both an assurarlce
o1'an accurate record of the deposition, as well as a benchmark upon which the

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video record could be challenged if that was necessaqi); accord Rice's Toyota
World, Inc. v. Southeast Toyota DistriLtutors, Inc., 1 14 F.R.D.6'+7,651 (M.D.N.C.
1987) (when a stenographer is p,resent and the video recording is in addition to the
written transcript, the issue of r,l,hether to permit the video recorrCinl; "is not
governed by Rule 30(bX4) as much as by the Court's general authority to reg,ulate
the deposition process.").
The sole case cited by the Medir;al Defendants is utterly breside the point. In
Oarvalho v Reid,193 tt.R.D . 149 (S.D,l\I.Y. 2000), the magistrate judge properl'y
denied a request by a pro se plaintiff v,'ith an extensive record olldisobeying court
ordr:rs from videotaping her otvn deposil.ion. Nothing in this decision -- or any
other decision -- supports the meritless position takerr by the Medical Defendants
orr this motion.

Accordingly, the motion For a protective order rshould be denied and Nlr.
Callan's firm should be require<lto pay lfor the coutl repofter's expenses incurred
orr October 25,2013, as well as the los;t time spent by plaintilf s attorneys
appearing for the deposition on that date and the time incurred for preparing this;
otrrposition.

Rcspectful ly subrnitted,

/M/.W'

Nathaniel B. Smith

Bv ECF and Fax [phone]
c0:

All

Counsel (w/o encl.)
Via ECF