Omaro v. O'Connell et al

Filing 68

ORDER granting 48 defendants' motion to reopen discovery to continue plaintiff's deposition and to compel him to answer in a non-evasive manner. Counsel may continue plaintiff's deposition on these issues. The deposition shall occur by no later than 1/31/2018, and shall be limited to no more than 90 minutes. Although plaintiff may object to questions, he is reminded that he must nonetheless answer the questions directly and non-evasively. Signed by Hon. Marian W. Payson on 1/2/2018. Copy of this Decision & Order sent by First Class Mail to plaintiff Derrick R. Omaro on 1/3/2018 to his address of record. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
DERRICK R. OMARO,
DECISION & ORDER
Plaintiff,
16-CV-6052W
v.
D. O’CONNELL, Attica Correctional Facility
Sergeant, et al.,
Defendants.
_______________________________________

Pending before this Court is defendants’ motion to reopen discovery to continue
plaintiff’s deposition and to compel him to answer questions in a non-evasive manner. (Docket
# 48).
I have reviewed the challenged portions of plaintiff’s testimony and agree that his
answers were evasive. (See Docket # 56 at 53.3-57.7, 60.12-77.2). Defendants are entitled to
obtain answers to their questions about the bases of plaintiff’s claims against them. They are
entitled to ascertain whether plaintiff can describe the claims against them without reference to
or reading from the complaint. If he can, defendants are entitled to elicit such a description from
plaintiff and to ask follow-up questions. If he claims he cannot, defendants are entitled to elicit a
clear statement to that effect and to explore the factual bases for the allegations made in the
complaint. Not only must plaintiff answer those questions, but he must also clarify, if asked,
whether his allegations of wrongdoing by defendants are limited to those set forth in the
complaint.

With respect to the questions concerning the fourth package violation (Docket
# 56 at 102.2-106.3), I read plaintiff’s testimony to state that he does not remember ordering the
package or paying for it. (See id. at 105.25-106.3). To avoid confusion, defendants may
question plaintiff to confirm his sworn testimony that he has no recollection of ordering or
paying for the fourth package.
For the reasons set forth herein, counsel may continue plaintiff’s deposition on
these issues. The deposition shall occur by no later than January 31, 2018, and shall be limited
to no more than ninety (90) minutes. Although plaintiff may object to questions, he is reminded
that he must nonetheless answer the questions directly and non-evasively. See Fed. R. Civ. P.
30(c)(2).
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
January 2, 2018

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