Scott-Iverson v. Independent Health Association, Inc.

Filing 83

DECISION and ORDER granting 80 Motion to Compel; granting in part and denying in part 81 Motion. A Third Amended Scheduling Order will be simultaneously filed with this Decision and Order. Plaintiff shall show cause why Defendants deposition costs and those incurred in connection with Defendant's motion should not be awarded pursuant to Fed.R.Civ. P. 37(a)(5) and (d)(1). Plaintiff's showing shall be filed not later than 14 days from the date of this Decision and Order; Defendant's response shall be filed not later than five days thereafter. Oral argument shall be at the court's discretion. Signed by Hon. Leslie G. Foschio on 3/1/2016. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DECISION
and
ORDER

DAWN SCOTT-IVERSON,
Plaintiff,
v.
INDEPENDENT HEALTH ASSOCIATION, INC.,

13-CV-451A(F)

Defendant.
________________________________________
APPEARANCES:

FRANK T. HOUSH, ESQ.
Attorney for Plaintiff
70 Niagara Street
Buffalo, New York 14202
KAVINOKY & COOK, LLP
Attorneys for Defendant
R. SCOTT DELUCA, of Counsel
726 Exchange Street, Suite 800
Buffalo, New York 14210

In this Title VII case alleging employment discrimination based on Plaintiff’s race
and gender, by papers filed February 22, 2016, Defendant moved to compel Plaintiff’s
deposition scheduled to continue on February 22, 2016 (Dkt. 80) (“Defendant’s
motion”). Pursuant to this court’s order, Dkt. 77, Defendant was permitted to depose
Plaintiff for a maximum of four days and the first day of Plaintiff’s deposition, as the
parties had agreed, was conducted February 17, 2016 . Dkt. 80-1 ¶ 16. Pursuant to this
agreement, Plaintiff’s deposition was also scheduled to continue on February 22 and
23, 2016. Id. ¶ 14. Prior to the scheduled commencement time for the continuation of
Plaintiff’s deposition on February 22, 2016, Defendant was notified by Plaintiff less than
90 minutes prior to the agreed start time, Dkt. 80-1 at ¶ 18, that Plaintiff would not
appear for such deposition, Dkt. 80-1 ¶ 19, without explanation, and was refusing to
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appear for the February 23, 2016 deposition as well. Id. According to Plaintiff, who is
an African-American woman, Plaintiff’s refusal resulted from Plaintiff’s belief that during
an off-the-record break in Plaintiff’s first deposition session on February 17, 2016,
Defendant’s attorney engaged in several comments, including references to Plaintiff’s
relationship with her husband, a prior meeting Defendant’s attorney had with a popular
African-American musical artist, and a gratuitous reference to Plaintiff’s age, Dkt. 81-1
¶¶ 7, 8, 10-11, which comments Plaintiff found to be racially tinged, “offensive,” “rude,”
and “demeaning.” Dkt. 81-1 ¶¶ 7, 12. According to Plaintiff, although no objection to
Defendant’s attorney’s comments was, upon resumption of Plaintiff’s testimony at the
first deposition session, placed on the record, Dkt. 82 ¶ 8, following completion of
Plaintiff’s deposition which lasted about 4 ¼ hours, Dkt. 80-1 ¶ 16, Plaintiff explained to
Plaintiff’s attorney about Defendant’s attorney’s comments that Plaintiff believed
Defendant’s attorney was attempting to “degrade and intimidate” Plaintiff and that such
conduct would “affect the quality of my [Plaintiff’s] testimony.” Dkt. 81-1 ¶ 13.
In opposition to Defendant’s motion, Plaintiff moves, Dkt. 81, to terminate
Plaintiff’s deposition pursuant to Fed.R.Civ.P. 30(d)(3)(A) & (B) (“Rule 30(d)(3)__”)
based on Defendant’s asserted abuse and humiliation of Plaintiff, Dkt. 81 ¶¶ 2, 3 by
uttering “deeply offensive racial and misogynist comments” during the February 17,
2016 deposition (‘Plaintiff’s motion”). Id. Alternatively, Plaintiff requests the court
appoint a special master to supervise Plaintiff’s further deposition, id. ¶ 9, at
Defendant’s sole expense. Id. Plaintiff also requests the court compel Defendant to
cooperate in scheduling the deposition of Defendant’s witnesses, Dkt. 81 ¶¶ 14-15 and
that the court modify the Second Amended Scheduling Order, Dkt. 78 (“Second

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Amended Scheduling Order”) to extend the period for discovery based on the difficulties
that have arisen because of Defendant’s attorney’s alleged misconduct. Id. ¶¶ 16-17.
In opposition to Plaintiff’s motion to terminate Plaintiff’s deposition, Defendant
contends Defendant’s attorney has apologized to Plaintiff for any unintended
discomfiture Defendant’s attorney’s comments may have caused Plaintiff, Dkt. 80-1, ¶
24; Dkt. 82 ¶ 23, that Plaintiff’s perception that Defendant’s attorney’s comments were
so egregious as to amount to improper harassment of Plaintiff within the scope of Rule
30(d)(3) thereby adversely affecting Plaintiff’s capacity to testify are without support in
that notice of Plaintiff’s complaints were not placed on the record of the deposition
immediately after hearing Defendant’s attorney’s comments, and Plaintiff delayed four
and one-half days before providing notice of Plaintiff’s complaint and refusal to attend
the February 22, 2016 session of her deposition. Dkt. 82 ¶¶ 9-10. With respect to
Plaintiff’s alternative request for appointment of a special master to supervise Plaintiff’s
deposition pursuant to Fed.R.Civ.P. 53(a), Defendant notes such appointments are
typically reserved for complex matters likely to raise numerous technical objections.
Dkt. 82 ¶ 20. As to Plaintiff’s motion to compel depositions of Defendant’s witnesses,
Defendant notes Plaintiff has failed to meet and confer in good faith to avoid judicial
intervention with respect to this matter as required by Local R.Civ.P. 7(d)(4) and
Fed.R.Civ.P. 37(a)(1), Dkt. 82 ¶¶ 26, 31, and Plaintiff’s motion is untimely as the cut-off
date of February 1, 2016 for motions to compel fact discovery established by the
Second Amended Scheduling Order has passed. Defendant also notes that Plaintiff
delayed issuing any discovery demands until January 29, 2016, making it difficult to

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reasonably schedule depositions of Defendant’s witnesses prior to the date of February
29, 2016 for completion of fact discovery in this case. Dkt. 82 ¶ ¶ 48-49.
Courts have broad discretion to oversee the pretrial discovery process in federal
civil cases and remediate actions which interfere or undermine the benefits of the
discovery process. See Soley v. Wasserman, 2016 WL 321176, at *2 (2d Cir. Jan. 27,
2016) (“The district court is afforded wide discretion in evaluating the sufficiency of
discovery.”) (citing Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004)
(recognizing district court’s “broad discretion” to direct and manage the pre-trial
discovery process)). Regarding deposition practice, Rule 30(d)(2) authorizes the court
to impose sanctions when someone “impedes, delays, or frustrates the fair examination
of the deponent.” Fed.R.Civ.P. 30(d)(2). Additionally, as relevant, Rule 30(d)(3)(A)
permits the court to terminate a deposition where a party conducts the deposition “in a
manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.”
“‘In general, counsel should not engage in any conduct during a deposition that would
not be allowed in the presence of a judicial officer.’” United States ex rel. Kelly Baltazar
v. Warden, 302 F.R.D. 256, 258 (N.D.Ill. 2004) (quoting Advisory Committee Notes to
1993 Amendments to Rule 30(d)(3)). Thus, accusations of lying by a witness, or
threatening a witness or other “inappropriate, insulting, and offensive” remarks by
opposing counsel are not permitted. Id. at 262, 265. Nor will courts permit questioning
or comments about a witness’s employment, family or personal life. Horton v. Maersk
Line, Ltd., 294 F.R.D. 690, 699 (S.D.Ga. 2013). Pursuant to Fed.R.Civ.P. 26(c) (“Rule
26(c)”) courts have broad authority to protect a witness against annoyance,
embarrassment and oppression for good cause. Courts should also use their “authority

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to maintain standards of civility and professionalism” during the conduct of depositions.
Redwood v. Dobson, 476 F.3d 462, 469-70 (7th Cir. 2007)). However, in this case, the
alleged misconduct attributed to Defendant’s attorney occurred during an off-the-record
break in the testimony and while directed to Plaintiff was not recorded. Significantly,
neither party cites to any authority extending Rule 30(d)(3) or Rule 26(c) to such off-therecord comments which do not constitute questioning of Plaintiff as a witness.
Notwithstanding, it is not inconceivable that misconduct by an examining attorney could
take place during breaks in a deposition requiring judicial intervention under the court’s
plenary authority to oversee discovery. Even if the court’s supervisory authority under
Rules 30(d)(3) and 26(c) extended to such off-the-record comments, based on the
information available to the court, Plaintiff’s assertion that counsel’s comments were
racially tinged, rude, and demeaning appear somewhat strained. While Defendant’s
counsel admits that during a break in the February 17, 2016 deposition, he alluded,
jokingly, to Plaintiff’s influence over Plaintiff’s husband (“Plaintiff had her husband
wrapped around her little finger”), Dkt. 82 ¶ 5, such comment was intended as a form of
“friendly off-the-record banter,” id., although, in retrospect, ill-advised. Similarly,
counsel’s reference to his prior encounter with the pop-music star, 50 Cent, according to
counsel was also “off-the-record chitchat.” Id. ¶ 6. How such a casual reference,
unrelated to the deposition, without more, to an African-American male celebrity could
reasonably be perceived as a racially demeaning comment directed to Plaintiff, causing
Plaintiff to take offense and impair her ability to testify, is not explained by Plaintiff.
Counsel’s reference to Plaintiff’s age appears gratuitous and one better avoided even if
intended as part of a benign effort to make “small-talk,” Dkt. 82 ¶ 20, during a deposition

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break. Thus, the court fails to see how counsel’s comments, even if, in retrospect,
unwise, constitute insulting or oppressive misconduct justifying Plaintiff’s unilateral and
belated refusal to attend the February 22, 2016 deposition session or warranting a
termination of the deposition pursuant to Rule 30(d)(3) or Rule 26(c).
Plaintiff’s complaint is further undermined by Plaintiff’s failure to immediately
place an objection to counsel’s alleged misconduct on the record, upon resumption of
the deposition, as Rule 30(d)(3) requires, and Plaintiff’s unexplained delay in raising the
issue with Defendant until just prior to the scheduled commencement of the February
22, 2016 deposition session, thereby disrupting the schedule for completing discovery in
this case. Accordingly, even if counsel’s off-the-record comments made during a break
in Plaintiff’s deposition testimony are considered as conduct reviewable under Rule
30(d)(3)(A), on this record the court is unable to find that such conduct can fairly be
characterized as constituting unreasonable deposition harassment, annoyance,
oppression or embarrassment warranting, Rule 26(c), a permanent termination of
Plaintiff’s deposition as Plaintiff apparently seeks. See Dkt. 81 ¶ 9 (requesting,
alternatively, that Plaintiff’s deposition be supervised by a special master). As such,
there is no reason to further consider Plaintiff’s alternative request that should the court
permit a resumption of Plaintiff’s deposition, that the deposition be overseen by a
special master and such request is therefore denied. Defendant’s attorney may,
however, wish to avoid any off-the-record contact with Plaintiff during Plaintiff’s further
deposition sessions.
Regarding Plaintiff’s request to extend discovery based on Defendant’s alleged
failure to cooperate in scheduling depositions of Defendant’s witnesses, Defendant

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opposes this request contending Plaintiff has failed to demonstrate good cause for such
request. Dkt. 82 ¶¶ 44-45. Defendant points specifically to Plaintiff’s unexplained
failure to conduct discovery prior to Plaintiff’s requests dated January 29, 2016, Dkt. 812 at 5, in a more timely manner. Dkt. 81 ¶¶ 46-47. While the court does not disagree
that Plaintiff’s discovery efforts in this case have been unexplainably tardy, and that
Plaintiff could have raised the matter of Defendant’s counsel’s deposition comments
with the court herself without awaiting Defendant’s (predictable) motion, nevertheless
resolution of the instant issue caused by Defendant’s counsel’s comments will delay
timely completion of discovery. Accordingly, Plaintiff’s request to extend the Second
Amended Scheduling Order will be granted. Plaintiff is advised, however, that further
unjustified delay in completing discovery will not be tolerated.
Finally, given that Plaintiff’s unilateral refusal and without fair notice to Defendant,
to attend Plaintiff’s scheduled February 22, 2016 deposition session appears to the
court to have been without substantial justification, Plaintiff shall show cause why
Defendant’s deposition costs and those incurred in connection with Defendant’s motion
should not be awarded pursuant to Fed.R.Civ. P. 37(a)(5) and (d)(1). Plaintiff’s showing
shall be filed not later than 14 days from the date of this Decision and Order;
Defendant’s response shall be filed not later than five days thereafter. Oral argument
shall be at the court’s discretion.

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CONCLUSION
Defendant’s motion (Dkt. 80) is GRANTED; Plaintiff’s motion (Dkt. 81) is DENIED
in part and GRANTED in part. A Third Amended Scheduling Order will be
simultaneously filed with this Decision and Order.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: March 1, 2016
Buffalo, New York

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