Small v. The State of New York et al

Filing 63

DECISION AND ORDER granting defendant Cuer's motion 56 to compel; denying 59 plaintiff's cross-motion. Signed by Hon. Jeremiah J. McCarthy on 3/26/15. (DAZ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
PAMELA S. SMALL,
DECISION AND ORDER
Plaintiff,
v.

12-CV-01236-WMS-JJM

THE STATE OF NEW YORK,
et al.,
Defendants.
_____________________________________
Before me is the motion of defendant Carl Cuer (“Cuer”) for an order compelling
his attendance at future depositions [56],1 and plaintiff’s cross-motion to preclude him from
videotaping her deposition [59]. Familiarity with the relevant facts is presumed, and will be
discussed only as necessary for resolution of these motions.
For the following reasons, Cuer’s motion (which I interpret as requesting that he
be allowed, rather than compelled, to attend future depositions in person) is granted, and
plaintiff’s cross-motion is denied.

ANALYSIS
A.

Cuer’s Attendance at Depositions
Although the parties previously agreed that Cuer would be in a separate room

during the deposition of defendant James Conway, they “reserve[d] the right to seek appropriate
relief concerning Cuer’s attendance at future depositions” [51]. Plaintiff argues that allowing
Cuer’s attendance at future depositions would cause her “extreme distress and undue burden, and

1

Bracketed references are to CM/ECF docket entries.

it would involve [an] almost certain likelihood that Plaintiff’s extremely fragile psychological
state would further deteriorate if she has to face Defendant Cuer”. Shoemaker Affidavit [59-1],
¶33.
“The grant and nature of protection is singularly within the discretion of the
district court.” Galella v. Onassis, 487 F.2d 986, 997 (2d Cir.1973). While “the court has the
power to exclude even a party [from a deposition] . . . such an exclusion should be ordered rarely
indeed.” Id. “That standard is fully consistent with the notion that a party’s right to attend a
deposition has a constitutional dimension and is therefore entitled to special protection.” Hines
v. Wilkinson, 163 F.R.D. 262, 266 (S.D. Ohio 1995).
Unlike Galella, in which the court excluded the plaintiff from the defendant’s
deposition, here it is the plaintiff - who chose to name Cuer as a defendant - seeking to exclude
him from depositions. I recognize that plaintiff claims to be in fear of Cuer; however, I note that
none of the alleged incidents appear to be of very recent vintage. While plaintiff certainly has the
right to seek recourse from Cuer in this action, he likewise has the right to participate
meaningfully in his defense, including by observing depositions and consulting with his attorney
as they proceed. If this makes plaintiff uncomfortable, then “[t]he obvious solution . . . is for her
to absent herself, for her to listen from an adjoining office”. Nelson Reply Affidavit [61], ¶14.
“[T]he courts may exclude a party from a deposition only in extraordinary
circumstances.” Hines, 163 F.R.D. at 266. These are not such circumstances. Therefore,
plaintiff may not prevent defendant Cuer from attending future depositions in person. However,
should he engage in threatening or harassing conduct toward plaintiff in the future (during
depositions or otherwise), I may reconsider this determination.
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B.

Videotaping Plaintiff’s Deposition
Defendant Cuer has served a notice to take plaintiff’s deposition by videotape

([59-1], p. 32 of 35). In cross-moving for a protective order to prevent the videotaping, plaintiff
argues that “[t]here is no compelling need to videotape Plaintiff’s deposition, and it is clearly a
tactic to continue Defendant Cuer’s harassment and stalking of Plaintiff”. Shoemaker Affidavit
[59-1], ¶37. However, Cuer “has no burden to justify the decision to videotape the deposition”.
Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 182 (S.D.N.Y. 2004). See Fed. R.
Civ. P. (“Rule”) 30(b)(3)(A) (“Unless the court orders otherwise, testimony may be recorded by
audio, audio-visual, or stenographic means”).
Nor do I accept plaintiff’s assertion that the videotaping of her deposition is
merely intended to harass her. “The liberalization of the Federal Rules of Civil Procedure to
more fully permit videotape recording of depositions reflects a belief that the use of such
technology enhances parties’ presentation at trial, particularly before juries, of deposition
testimony which historically was limited in form to readings from cold, printed records.”
Convolve, 223 F.R.D. at 182. “A video deposition, unlike a typed transcript, allows a trial jury
to consider the demeanor of a witness while testifying . . . . [I]t is a superior method of conveying
to the fact finder the full message of the witness in a manner that assists the fact finder in
assessing credibility.” Riley v. Murdock, 156 F.R.D. 130, 131 (E.D.N.C. 1994).2
Therefore, defendant Cuer may videotape plaintiff’s deposition.

2

Whether the videotape will be admissible at trial is not presently at issue.

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CONCLUSION
For these reasons, defendant Cuer’s motion [56] is granted, and plaintiff’s crossmotion [59] is denied.

SO ORDERED.
Dated: March 26, 2015

/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge

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