Kaplan v. New York State Department of Labor et al

Filing 86

ORDER granting 85 Letter Motion for Discovery. The Court is in receipt of Plaintiff's letter regarding whether Kathy Dix may be included in the tranche of witnesses for which the deadline to depose is April 17, 2020, as well as requestin g the Court's guidance on whether witnesses may be deposed by video conference. The Court GRANTS the request to extend the deadline by which Ms. Dix must be deposed to April 17, 2020. However, there will be no further extensions, and the Cou rt is of the opinion that if Mr. Luibrand is unable to physically meet with his client to review materials with her, he should expect to review said materials with her via telephone or video conference. As for the guidance regarding the Court 9;s prior order, the Court does prefer that those depositions take place in-person insofar as it is safe to do so. However, if live depositions cannot take place due to health concerns, the Court believes that video conferences are an acceptable substitute, given that they still provide counsel with the ability to see all parties. (Signed by Judge Katherine Polk Failla on 3/25/2020) (mro)

Counseling and Advising Clients Exclusively on Laws of the Workplace

Zabell & Collotta, P.C.
1 Corporate Drive
Suite 103
Bohemia, New York 11716
Tel. [phone]
Fax. [phone]
www.Laborlawsny.com

Saul D. Zabell
Email: [e-mail]

March 24, 2020

VIA ELECTRONIC MAIL: [e-mail] &
VIA ELECTRONIC CASE FILING
The Honorable Katherine Polk Failla
United States District Judge
United States District Court
Southern District of New York
40 Foley Square, Room 2103
New York, New York 11722
Re:

MEMO ENDORSED

Kaplan v. NYS Dep’t. of Labor
Case No.: 18-CV-3629 (KPF)

Your Honor:
We are counsel to Plaintiff in the above-referenced matter. We respectfully
submit the foregoing seeking to both amend Your Honor’s March 17, 2020 Order
[ECF Doc. No. 84], and for clarification concerning the same.
Specifically, this morning we received a communication from Kevin
Luibrand, Esq., counsel to non-party witness Kathy Dix, stating that his client is
unable to appear for a subpoenaed deposition scheduled for Monday, March 30,
2020. We were advised that Ms. Dix is currently quarantined and is unable to
physically attend at this time. We were also been advised that Ms. Dix cannot
appear by telephone because of a stated inability to meet with counsel to review
documentation in preparation for the deposition. However, Mr. Luibrand has
further represented that his client is able to be deposed within the deadline
already set by the Court for non-party employees of Defendant – April 17, 2020.
Accordingly, we respectfully request that the Court’s March 17, 2020 Order be
amended to include for Plaintiff’s ability to depose Ms. Dix up to and including
April 17, 2020. Defendant joins in Plaintiff’s application to extend the time to
depose Ms. Dix to this date.
To that end, Defendant has proposed that the depositions of Ms. Dix and its
employees be conducted remotely via video conference. Although the parities
discussed a mutually agreeable location and dates for the three (3) depositions of

March 24, 2020
Page 2 of 2
Defendant’s employees, Defendant has taken the position that conducting inperson depositions violates the public health directives of the federal and State
governments. With all due respect to the current circumstances, we believe the
spirit of Your Honor’s March 17, 2020 Order – which provides “Defendant to make
a good-faith effort to make those witnesses available within that period” – requires
Defendant to make their employees available for in-person questioning. This
position is based upon my auditory limitations, which the Court was made aware
in Plaintiff’s previous application [ECF Doc. No. 83]. We therefore respectfully
request Your Honor’s guidance concerning Defendant’s obligations with respect to
the production of witnesses.
We thank the Court for is continued time and attention to this matter.
Respectfully submitted,
ZABELL & COLLOTTA, P.C.

Saul D. Zabell
cc:

Client
All Counsel of Record (via Electronic Case Filing)

The Court is in receipt of Plaintiff's letter regarding whether Kathy Dix
may be included in the tranche of witnesses for which the deadline to
depose is April 17, 2020, as well as requesting the Court's guidance on
whether witnesses may be deposed by video conference. The Court GRANTS
the request to extend the deadline by which Ms. Dix must be deposed to
April 17, 2020. However, there will be no further extensions, and the
Court is of the opinion that if Mr. Luibrand is unable to physically meet
with his client to review materials with her, he should expect to review
said materials with her via telephone or video conference.
As for the guidance regarding the Court's prior order, the Court does
prefer that those depositions take place in-person insofar as it is safe
to do so. However, if live depositions cannot take place due to health
concerns, the Court believes that video conferences are an acceptable
substitute, given that they still provide counsel with the ability to
see all parties.
SO ORDERED.

Dated:

March 25, 2020
New York, New York
HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE