Scott-Iverson v. Independent Health Association, Inc.
Filing
91
DECISION AND ORDER. Defendant's application for expenses in connection with Defendant motion (Dkt. 87) is GRANTED. Defendant shall file Defendant's statement of its attorneys fees and costs within 30 days; Plaintiff's opposition shall be filed within 14 days thereafter. A hearing on Defendant's application will be scheduled at the discretion of the court. Signed by Hon. Leslie G. Foschio on 4/14/2016. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
DECISION
and
ORDER
DAWN SCOTT-IVERSON,
Plaintiff,
v.
INDEPENDENT HEALTH ASSOCIATION, INC.,
13-CV-451V(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
JURISDICTION
In this employment discrimination case, by Decision and Order, 2016 WL 787961
(W.D.N.Y. Mar. 1, 2016) (Dkt. 83), (“March 1, 2016 D&O”), the court granted
Defendant’s motion, pursuant to Fed.R.Civ.P. 37(d)(1)(A) (“Rule 37(d)(1)(A)”), to
compel Plaintiff’s attendance at Plaintiff’s deposition as previously ordered by the court
(Dkt. 77) permitting Defendant to conduct Plaintiff’s deposition over a four-day period.
The matter is presently before the court on Defendant’s application for an award of
expenses incurred in connection with Defendant’s motion to compel Plaintiff’s
attendance at three further deposition sessions (Dkt. 80) (“Defendant’s motion”).
Defendant’s motion was necessitated by Plaintiff’s refusal to appear for the second day
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of Plaintiff’s deposition, February 22, 2016, scheduled to commence at 9:30 a.m. as
agreed by the parties. Plaintiff first informed Defendant’s counsel by e-mail sent at
approximately 8:00 a.m. on that day through her attorney that Plaintiff, without any
previous notice or explanation to Defendant, would also refuse to attend the third day of
her deposition scheduled for February 23, 2016. In opposition to Defendant’s motion,
Plaintiff asserted her refusal to appear for her further deposition sessions was prompted
by her belief that certain off-the-record comments made by Defendant’s attorney, R.
Scott DeLuca, during breaks during her first deposition session on February 17, 2016,
had conveyed racial and sexist overtones perceived by Plaintiff as demeaning and
intended to degrade and intimidate Plaintiff, thereby adversely affecting the “quality” of
her expected testimony. Dkt. 81-1 ¶¶ 7, 12, 13. Plaintiff therefore requested the court
terminate her deposition pursuant to Fed.R.Civ.P. 30(d)(3)(A) (“Rule 30(d)(3)(A)”)
because Plaintiff found Defendant’s counsel’s remarks to be “deeply offensive racial
and misogynist comments.” Dkt. 81 ¶¶ 2, 3. Plaintiff alternatively requested a special
master be appointed to supervise any further deposition of Plaintiff. Id. ¶¶ 8-9. In
granting Defendant’s motion the court dismissed Plaintiff’s characterizations of
Defendant’s attorney’s comments as being racial and gender tinged finding, based on a
consideration of the comments, Plaintiff perceptions “somewhat strained,” March 1,
2016 D&O at 5, and that there were no grounds to find Defendant’s counsel’s
comments constituted unreasonable annoyance, embarrassment or oppression of
Plaintiff to warrant termination under Rule 30(d)(3)(A) of Plaintiff’s further scheduled
deposition sessions or appointment of a special master to supervise such deposition.
March 1, 2016 D&O at 6. Based on its review of the record, the paucity of authority
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addressing alleged deposition misconduct during an off-the-record break, the
implausibility of Plaintiff’s perceived racial and gender-based slights directed to her by
Defendant’s attorney, and Plaintiff’s failure to make timely objections and inform
Defendant of her intention to refuse to attend the February 22, 2016 continuation of her
deposition, the court granted Defendant’s motion directing Plaintiff’s deposition be
conducted and timely completed in accordance with the court’s prior order (Dkt. 77).
The court further required Plaintiff to 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(d)(3) which requires the court to award reasonable expenses
including attorneys fees to the prevailing party unless the failure was substantially
justified or an award of expenses would be unjust (“Rule 37(d)(3)”).
In accordance with the March 1, 2016 D&O’s direction to show cause, Plaintiff
filed on March 15, 2016, the Affirmation of Frank Housh in Opposition to Rule 37
Sanctions (Dkt. 86) (“Housh Affirmation”); on March 21, 2016, Defendant filed Attorney
Declaration Regarding the Court’s Order to Show Cause Concerning Sanctions Against
Plaintiff (Dkt. 87) (“DeLuca Declaration”). Plaintiff first contends sanctions should not be
imposed because Plaintiff’s appearance and participation in the conduct of Plaintiff’s
first deposition on February 17, 2016 constituted “substantial compliance” with the
court’s prior order granting Defendant permission to conduct Plaintiff’s deposition over a
maximum of four days (Dkt. 77), and, accordingly, Plaintiff’s refusal to appear for the
second session of her deposition on February 22, 2016, as well as the third session
scheduled for February 23, 2016, was substantially justified. Housh Affirmation ¶¶ 3-6.
Second, Plaintiff argues that an award of sanctions would be “unjust” under the
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circumstances that Plaintiff’s “reasonable and good faith belief represented good cause
to terminate the [Plaintiff’s] depositions,” Housh Affirmation ¶ 12, Plaintiff’s good faith
belief that Defendant’s counsel’s continued presence at the deposition would
“deleteriously affect” Plaintiff’s ability to testify, Housh Affirmation ¶ 10, and that
Defendant’s counsel’s conduct constituted a violation of Rule 30(d)(3)(A)’s prohibition
against embarrassing and oppressive conduct during the February 17th deposition
session. Id. ¶ 11.
In support of an award of sanctions, Defendant contends that given the court’s
finding in the March 1, 2016 D&O that Plaintiff’s complaints of racial and gender
intimidation directed to her by defense counsel’s comments, intended by counsel as
“small-talk,” during deposition breaks, Dkt. 80-1 ¶ 20, had no reasonable basis, such
complaints therefore could not excuse Plaintiff’s belated and unilateral decision to
terminate the deposition by refusing to appear on February 22nd as scheduled. DeLuca
Declaration ¶¶ 9-10. Defendant also contends that Plaintiff’s assertions that she held a
reasonable belief that defense counsel’s comments constituted improper deposition
conduct is contradicted by the fact that neither Plaintiff nor Plaintiff’s attorney brought
such “reasonable belief,” Dkt. 86 ¶ 12, to the attention of Defendant’s attorney by
placing them on the record of the February 17, 2016 deposition or requesting a
termination of the deposition to facilitate application to the court as Rule 30(d)(3)(A)
(deponent or party may request court to terminate or limit deposition if conducted in
“bad faith” or “in a manner that unreasonably annoys, embarrasses, or oppresses the
deponent or party”) provides. DeLuca Declaration ¶¶ 11-12. As such, Defendant
contends Plaintiff’s refusal to attend the February 22, 2016 deposition session was
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without substantial justification, warranting an award of sanctions pursuant to Rule
37(d)(1) (authorizing award of sanctions for a party’s failure to appear for party’s
deposition). Defendant also contends that under the relevant circumstances, it will not
be unjust to award sanctions against Plaintiff, Rule 37(d)(3) (no sanctions to be
awarded where “other circumstances make an award of expenses unjust”). Specifically,
Defendant explains that upon learning later during the morning of February 22nd from an
encounter, at approximately 9:30 a.m., with Plaintiff’s attorney of the alleged reasons for
Plaintiff’s refusal to attend the February 22, 2016 deposition, without conceding any
impropriety, Mr. DeLuca offered an apology to Plaintiff through Plaintiff’s attorney if any
of the comments had somehow offended her and agreed to limit further off-the-record
discussions to administrative matters related directly to the deposition. DeLuca
Declaration ¶¶ 26, 27. As Defendant notes, had such “apology” been accepted by
Plaintiff, the deposition could have proceeded presumably later that day, obviating the
need for Defendant’s motion; however, Mr. DeLuca’s offer was rejected by Plaintiff’s
counsel at that time without explanation, except for Plaintiff’s counsel’s representation
that Plaintiff intended to file an unspecified motion with the court. Id. ¶¶ 22-27; 29-30.
Under Rule 37(d)(3) the court is required to award reasonable expenses,
including attorneys fees, to the prevailing party on a motion to compel attendance at a
party’s scheduled deposition when the party’s failure to appear was not “substantially
justified or other circumstances make an award of expenses unjust.” A party refusing
discovery, in this case Plaintiff’s failure to appear for her deposition previously noticed
and scheduled by agreement for February 22, 2016, is substantially justified in refusing
discovery where a “‘genuine dispute’” existed or “‘if reasonable people could differ as to
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the appropriateness of the contested action,” Parsi v. Daioleslam, 778 F.3d 116, 126
(D.C. Cir. 2015) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal
citations and brackets omitted)), such as where a party believed caselaw supported its
position. Id. (citing Maddow v. Proctor & Gamble Co., 107 F.3d 846, 853 (11th Cir.
1997)). “Whether a party was substantially justified in resisting discovery is determined
by an “‘objective standard of reasonableness and does not require that the party have
acted in good faith.’” Underdog Trucking, L.L.C. v. Verizon Services Corp., 273 F.R.D.
372, 377 (S.D.N.Y. 2011) (quoting Bourne of New York City, Inc. v. AmBase Corp., 161
F.R.D. 258, 262 (S.D.N.Y. 1995) (citing Pierce, 487 U.S. at 565)). An award of
expenses is unjust under Rule 37(d)(3) where the circumstances of a party’s refusal
show an inability to comply by factors outside the party’s control such as a disability
preventing a request for judicial relief, or a physical inability to appear for a deposition
such as travel restrictions related to incarceration or a deponent’s serious illness. See
Restis v. American Coalition Against Nuclear Iran, Inc., 2014 WL 1870368 at *4
(S.D.N.Y. Apr. 25, 2014) (deponent’s travel restrictions, if documented, could have
excused appearance at deposition).
Plaintiff’s opposition to Defendant’s request for an award of sanctions pursuant to
Rule 37(d)(3) is without merit for several reasons. First, it is well-established that a
witness at a deposition is required to provide testimony, subject to an objection based
on privilege or misconduct by the deposing party, see Fed.R.Civ.P. 30(c)(2) (all
objections to evidence and conduct issues to be placed on the record of the deposition)
(“Rule 30(c)(2)”), in response to the deposing party’s questions until excused by the
deposing party or termination of the deposition by the court. See Jones v. Niagara
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Frontier Trans. Authority, 836 F.2d 731, 735 (2d Cir. 1987) (plaintiff’s refusal to answer
deposition questions at court ordered deposition absent a valid claim of privilege
warranted dismissal of plaintiff’s complaint). See also Gordon v. Semrug, 2016 WL
259578, at *1 (W.D.N.Y. Jan. 21, 2016) (citing Jones, 836 F.2d at 734-35). Plaintiff’s
assertion that by attending the first of three deposition sessions, Plaintiff has
substantially complied with the court’s order permitting Plaintiff’s deposition be taken for
up to four days, if accepted, would allow deponents to decide for themselves when their
obligation to attend and complete a scheduled deposition was satisfied, thereby
injecting a potentially chaotic element into an important phase of pretrial discovery
without support in Fed.R.Civ.P. 30 as demonstrated by the unnecessary proceedings
engendered by Plaintiff’s unilateral refusal to proceed with Plaintiff’s February 22, 2016
deposition session. Plaintiff points to no authority for such a disruptive theory and the
court’s research reveals none. Second, Plaintiff fails to explain how (or why), if
Defendant’s attorney had created a reasonable belief in the demeaning and intimidating
nature and impact of the allegedly offending comments, and the negative effects such
comments would have on her deposition testimony,1 Plaintiff was nonetheless able to
conduct herself “cooperatively,” Housh Affirmation ¶ 5, answering “all questions
completely and in good faith,” id., over a period of four and one-half hours, “a full day of
questioning,” in spite of one or more of such offensive comments. Housh Affirmation ¶
3. If Plaintiff reasonably (and genuinely) believed that Mr. DeLuca’s comments were so
intimidating that she could not proceed with the deposition, Plaintiff’s failure either to
report this interference with her ability to testify to her attorney, to make any mention of
1
The record does not specify when during Plaintiff’s deposition testimony the offending comments by
Defendant’s attorney occurred.
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it on the record at that time as required by Rule 30(c)(2) (all objections to questions and
the deposing party’s conduct to be placed on the record) or to suspend the deposition
as permitted by Rule 30(d)(3)(A) in order to seek immediate judicial intervention during
the two business days, Thursday and Friday, following her testimony at the February
17th deposition session by moving for an order pursuant to Rule 30(d)(3)(A),
demonstrates that Plaintiff’s rationalizations for her refusal to continue with her
deposition lack credibility. Indeed, it is remarkable that if Mr. DeLuca’s comments were
as offensive as Plaintiff now claims, such offensiveness was not also perceived by her
attorney during the deposition and an objection immediately lodged on the record by
counsel as required by Rule 30(c)(2), a fact not included in his affidavit. See Housh
Affidavit (passim).
Nor, contrary to Plaintiff’s further contention, Housh Affirmation ¶ 10, is there any
reason opposing the award of sanctions under Rule 37(d)(3) because under the
circumstances such an award would be unjust. Here, the court has determined that
Plaintiff’s belief that Mr. DeLuca’s off-the-record comments during breaks at Plaintiff’s
first deposition, addressed in more detail in the March 1, 2016 D&O, constituted a form
of race and gender based intimidation was, on this record, unfounded and did not
excuse Plaintiff’s unilateral and belated refusal to appear for her second deposition four
days later on February 22, 2016. In the court’s opinion, no reasonable person would
conclude that Plaintiff’s perception, as stated by Plaintiff, that Mr. DeLuca’s comments
during the breaks in the February 17, 2016 deposition, such as recounting his meeting
with an African-American entertainer (50 Cent) which Plaintiff characterized as a “racial
slur [ ],” Dkt. 81 ¶ 13, and an oblique reference to Plaintiff’s age, Dkt. 81-1 ¶¶ 9-11,
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which Plaintiff thought was rude and demeaning, Dkt. 81-1 ¶ 12, and an effort to
“degrade and intimidate” Plaintiff, Dkt. 81-1 ¶ 12, implied any improper references to
Plaintiff based on her race, gender or age calculated to intimidate her as a witness or
interfere with her testimony. Plaintiff’s assertion that her perceptions were based on
good faith, Dkt. 86 ¶ 10, is irrelevant as the test for substantial justification is objective,
not subjective. See Underdog Trucking, L.L.C., 273 F.R.D. at 377.
Further, as discussed, Discussion, supra, at 7-8, Plaintiff’s failure to promptly
request a protective order immediately following Mr. DeLuca’s purported intimidation by
applying to the court within the two business days, Thursday, February 18, and Friday,
February 19, 2016, when it was available for such purpose or to immediately inform
Defendant, and, instead, delaying notice to Defendant of Plaintiff’s intended refusal to
appear until approximately 90 minutes prior to the commencement of the scheduled
deposition, far from evidencing a genuine dispute concerning her refusal to appear,
supports an inference that the purported reasons for Plaintiff’s refusal simply were not
credible and, instead, constituted an improper attempt to avoid giving further testimony
thereby frustrating Defendant’s legitimate effort to prepare its defense. This conclusion
is reinforced by Plaintiff’s more recent assertion that her refusal was the subject of
“extensive meetings between [her] attorney and client [Plaintiff] between her testimony
on February 17, 206 and her scheduled testimony February 22, 2016.” Housh
Affirmation ¶ 7. In contrast, although Plaintiff, in response to Defendant’s motion, stated
that “[a]fter the testimony had concluded, I discussed my feelings with my attorney and
the fact that Mr. DeLuca makes me so uncomfortable that I feel that it will affect the
quality of my testimony,” Dkt. 81-1 ¶ 13, nothing in Plaintiff’s Affidavit in opposition to
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Defendant’s motion and in support of Plaintiff’s motion to terminate the deposition, Dkt.
81-1 (passim), indicates her decision to refuse to attend the February 22, 2016
deposition was the result of “extensive meetings” with Mr. Housh over the intervening
four-day period. Rather, crediting Plaintiff’s averment that Plaintiff’s distress was
identified by Plaintiff and communicated to Mr. Housh only upon conclusion of the
February 17, 2016 deposition, it is reasonable to find that Plaintiff’s adverse reaction to
Mr. DeLuca’s comments could have been communicated to her attorney during the
deposition with an objection placed on the record as required by Rule 30(c)(2). The
parties could have then attempted to resolve the issue amicably or Plaintiff could have
sought immediate judicial assistance, thus avoiding disrupting the agreed schedule for
completing Plaintiff’s deposition and the instant (and time-consuming) motion practice to
obtain Plaintiff’s compliance causing delayed completion of fact discovery in this case.2
Plaintiff’s opposition to Defendant’s application for expenses is also undermined by
Plaintiff’s alternative request that a special master be designated to supervise any
further deposition sessions the court may direct as it fails to explain how Plaintiff’s
alleged intimidation by Mr. DeLuca, Housh Affirmation ¶ 10 (“Plaintiff’s ability to testify
completely and accurately would be deleteriously affected by defense counsel’s
presence . . ..”) (underlining added) (referencing Affidavit of Dawn Scott-Iverson, Dkt.
81-1, ¶ 12 (“Mr. DeLuca makes me so uncomfortable that I feel that it [Deluca’s
presence] will affect the quality of my testimony (bracketed material added)), who is
likely to conduct such further depositions as Defendant’s counsel, would be dissipated
by the presence of a special master as Plaintiff requested.
2
As a result of Defendant’s motion, the court was required to approve an amended Scheduling Order
extending the period for fact discovery by 60 days. Dkt. 84
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Additionally, Plaintiff points to no circumstances supporting that Plaintiff’s
appearance at the February 22, 2016 deposition session was prevented by factors
outside Plaintiff’s control which would make an award unjust. For example, Plaintiff
could have appeared as scheduled on February 22, 2016, and placed her objection to
DeLuca’s conduct on the record with a demand that defense counsel refrain from any
gratuitous comments during breaks such as those Plaintiff purportedly found rude and
offensive, a demand that given Mr. DeLuca’s attempted apology, rebuffed by Plaintiff,
he expressed to Mr. Housh immediately upon being informed of Plaintiff’s complaint by
Housh later during the morning of February 22, 2016, when Mr. Housh verbally advised
him of Plaintiff’s purported upset, should have resolved the problem. In sum, based on
this record a reasonable person would not find substantially justified Plaintiff’s refusal to
attend the second deposition session on February 22, 2016 based on Plaintiff’s
subjective reactions to Mr. DeLuca’s comments during, or over the four-day period
following, Plaintiff’s first deposition session and Plaintiff points to no facts which
reasonably could excuse her refusal to attend. As such, Plaintiff’s refusal was without
substantial justification and there are no circumstances that would make an award of
expenses incurred in connection with Defendant’s motion unjust. Given that the record
supports finding that Plaintiff, and not Mr. Housh, was solely responsible for her refusal
to attend the February 22, 2016 and the February 23, 2016 deposition sessions, the
award should be against Plaintiff in accordance with Rule 37(a)(3).
CONCLUSION
Based on the foregoing, Defendant’s application for expenses in connection with
Defendant motion (Dkt. 87) is GRANTED. Defendant shall file Defendant’s statement of
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its attorneys fees and costs within 30 days; Plaintiff’s opposition shall be filed within 14
days thereafter. A hearing on Defendant’s application will be scheduled at the
discretion of the court.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: April 14, 2016
Buffalo, New York
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