Kamdem-Ouaffo v. Balchem Corporation et al

Filing 82

ORDER denying without prejudice 71 Motion for Local Rule 37.2 Conference. Accordingly, defendant's request to preclude or defer these deposition is denied, without prejudice to any application to impose reasonable time limits. The Clerk is respectfully requested to close Dkt. 71. As further ordered in this Order. SO ORDERED. (Signed by Magistrate Judge Paul E. Davison on 1/29/2020) (ks) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KAMDEM-OUAFFO,
Plaintiff,
- against -

I ORDER
I7Civ.2810(KMK)(PED)

BALCHEM CORP., ET AL.,
Defendants.
PAUL E. DAVISON, U.S.M.J.:
This Order addresses defendants' objections to certain discovery demands promulgated
by plaintiff/?/^ se. Defendants first presented their objections in a letter to Judge Karas dated

January 6, 2020, [Dkt. 71.] Plaintiff responded by letter dated January 7, 2020. [Dkt. 76.] After
this exchange of correspondence. Judge Karas referred this case to me for pretrial supervision.
[Dkt, 75.] This Court then convened a conference on January 29, 2020, at which plaintiff was
permitted to participate telephonically due to health reasons. After reviewing the parties
submissions and considering the arguments advanced at the hearing, the Court rules as follows:
1. Requests for Admission

On January 6, defendants complained that plaintiff had served 635 requests for
admissions, and attached the offending requests as a 256-page exhibit. [Dkts. 71, 71-3.] On
January 29, defense counsel reported that defendants had received supplemental requests, and

that the total number of requests for admissions promulgated by plaintiff had swelled to 737. In
addition to objecting to the number of requests, defendants note that many of the requests are
long and complex, seek irrelevant admissions, and/or contain unnecessary vulgar and
inflammatory language. Plaintiff maintains that these requests represent his preferred approach

to discovery, and that his requests target defenses and/or purportedly false representations which
have been advanced by defendants.
Rule 36(a) provides, in pertinent part, that "[a] party may serve on any other party a
written request to admit, for purposes of the pending action only, the truth of any matters within

the scope of Rule 26(b)(l) relating to; (A) facts, the application of law to fact, or opinions about
either; and (B) the genuineness of any described documents." Fed. R. Civ. P. 36(a). However,
requests for admissions are "not a discovery device much like inten'ogatories, demand for
documents, or depositions, nor are they to be considered substitutions for them. Henry v,
Champlain Enterprises. Inc., 212 F.R.D. 73, 77 (N.D.N.Y. 2003). Rule 36 is instead a
mechanism for narrowing the issues, and toward that end the requesting party must ensure that
the requests are set forth "simply, directly, not vaguely or ambiguously, and in such a manner
that they can be answered with a simple admit or deny without an explanation, and in certain
instances, permit a qualification or explanation for purposes of clarification," Id., 212 F.R.D. at
77.
I agree with defendants that the sheer number of requests promulgated by plaintiff is not
"proportional to the needs of [this] case," and that a protective order is warranted to protect
defendants from "oppression, or undue burden[.]" Rule 26(b)(l), (c)(l). Fed. R. Civ. P. See
Joseph I.. v. Conn. Dep't of Children & Families, 225 F.R.D. 400, 403 (D. Conn. 2005)(163
requests for admissions "excessive to the point of being abusive" warranting protective order).
A cursory review of plaintiff s requests also reveals that many of the requests are complex,

Plaintiff also asserts that his requests should be sustained because he has "substantially
less resources" than defendants, a claim which is belied by plaintiffs ability to generate
hundreds of pages of demands.

argumentative, and unlikely to lead to helpful admissions. Finally, I agree with defendants that
a number of plaintiff s demands unnecessarily incorporate vulgar sexual terminology which does
not relate to plaintiffs claims in this wrongful termination case and appears calculated to
embarrass defendants or their counsel. Plaintiff is directed to refrain from unnecessary
scatalogical references in any further discovery demands.
In sum, defendants are granted a Protective Order as to plaintiffs requests for
admissions, and need not address them further.
2, Deposition Notices

Defendants object to deposition notices plaintiff has served with regard to: 1)Theodore
Harris, identified as Balchem Corporations Chief Exeuctive Office; 2) Michael Sestrick,
identified as Baichem Corporation's Chief Technology Officer; 3) Travis Larsen, Balchem
Corporation's Assistant General Counsel; and 4) "Balchem Corporation's VP(s)/Director(s) of
Sales/Marketting [sic] of encapsulates in the animal and human nutrition market." Defendants
invoke the rule that depositions of senior executives are ordinarily disfavored as they may cause
business disruption or represent a form of harassment. See Gen, Star Indem. Co. v. Platinum
Indem., Ltd., 210 F.R.D. 80, 83 (S.D.N.Y. 2002). However, "hlghly-placed executives are not
immune from discovery^]" id., and the Court notes that Harris, Sestrick, and Larsen remain
defendants in this action and that plaintiff has a presumptive right to depose them on that basis.

The Court further notes that plaintiff has stated his intention to take depositions by
written questions pursuant to Rule 31, a procedure which the Court finds to be significantly less
disruptive than depositions by oral examination under Rule 30. The depositions should be

2A Rule 31 deposition will also simplify counsel's task in protecting any privilege
implicated by Mr. Larsen's testimony.

3

administered at Balchem's place of business, further minimizing disruption. Accordingly,
defendant's request to preclude or defer these deposition is denied, without prejudice to any
application to impose reasonable time limits.
3. "Deposition Quizzes"
Plaintiff apparently seeks to administer timed "quizzes" to witnesses during the course of
depositions. [Dkt. 71-6.] Timed "quizzes" are not authorized under the Federal Rules of Civil
Procedure, and the Court declines to permit plaintiff to proceed in this fashion. "A deposition is
not a quiz/' Dealer Computer Servs. v. Cun-v, 2013 US. Dist. LEXIS 18315 at * 2 (S.D.N.Y.
2013), nor is it a game show or speed contest. In the context of a deposition, plaintiff is entitled
to ask questions, but he is not entitled to administer "quizzes" or impose time limitations of the
witnesses.

The Clerk is respectfully requested to close Dkt. 71.

Dated: January 29, 2020
White Plains, New York
•/Ss':'..S'"'£

Pau]E.Davison,US.M.J.

Copy mailed to;
Ricky Kamdem-Ouaffo
301 Cozzcns Court

EastBrunswick,NJ088163

In an excess of caution. The docket reflects that plaintiff receives ECF notification.

[Dkt. 8.: