Roshen v. International Business Machines Corp et al

Filing 55

OPINION AND ORDER denying 52 Motion for Sanctions; granting 54 Motion to Seal. Signed by Magistrate Judge Norah McCann King on 7/29/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WASEEM A. ROSHEN,
Plaintiff,
vs.

Civil Action 2:14-cv-260
Judge Marbley
Magistrate Judge King

INTERNATIONAL BUSINESS MACHINES
CORPORATION, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for
Sanctions and to Reopen Discovery and for Extension of Time to Respond
for Summary Judgment (“Plaintiff’s Motion”), ECF 52.

The Court

conferred with counsel for the parties on July 28, 2015, and the
parties agreed that no further briefing was necessary.1

Plaintiff has

also filed a motion to seal four exhibits attached to Plaintiff’s
Motion; redacted copies of the exhibits are attached to plaintiff’s
motion.

For good cause shown, Plaintiff’s Motion to File under Seal

and Notice of Filing Redacted Depositions, ECF 54, is GRANTED.
However, and for the reasons that follow, Plaintiff’s Motion, ECF 52,
is DENIED.
This is an employment action in which plaintiff, who is Muslim,
of Pakistani national origin and is more than 40 years old, alleges
that he was denied promotions and otherwise discriminated against, and

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Plaintiff’s Motion does not state that plaintiff made any attempt to resolve
this discovery dispute prior to seeking Court intervention. Nevertheless, it
is apparent that the parties are at impasse.

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that his employment was ultimately terminated, all on account of his
religion, national origin and age, and that he was subjected to a
hostile work environment and retaliation for having exercised his
rights.

Plaintiff asserts claims under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-5, the ADEA, 29 U.S.C. § 621 et seq.,
and O.R.C. § 4112.01 et seq.
counsel on March 18, 2014.

Plaintiff filed this action through
Complaint, ECF 1.

Plaintiff’s counsel was

granted leave to withdraw on November 13, 2014, and plaintiff
proceeded pro se through discovery.

At the request of the parties,

the deadline to complete discovery was extended to April 15, 2015, ECF
27, and the Court held discovery conferences on December 9, 2014,
February 26, 2015, March 31, 2015, and May 1, 2015.

ECF 28, 30.

Discovery is now closed.
Defendants filed a motion for summary judgment on May 20, 2015.
ECF 37.

On June 4, 2015, new counsel entered an appearance on

plaintiff’s behalf, and plaintiff was granted, over defendants’
objection, a 30 day extension of time to respond to defendants’ motion
for summary judgment.

ECF 44.

On June 22, 2015, plaintiff filed a

motion to substitute yet different counsel and for an additional 30
day extension to file a response to defendant’s motion for summary
judgment.

ECF 46.

On July 8, 2015, the Court granted, again over

defendants’ objection, plaintiff’s request to substitute counsel and
extended the deadline to respond to the motion for summary judgment
until August 7, 2015.2

ECF 50.

Plaintiff’s Motion was filed on July 24, 2015.

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Plaintiff argues

Plaintiff’s Motion mistakenly states that plaintiff’s response is due August
8, 2015. Plaintiff’s response is due August 7, 2015. See ECF 50.

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in his motion that defendants raised “an excessive, unreasonable,
disruptive and abusive number of objections” during the January 15,
2015 deposition of defendant Sham Vaidya and the March 10, 2015
deposition of defendant Krishnan Ramachandran.
2.

Plaintiff’s Motion, p.

A word count performed by plaintiff’s counsel shows that the words

“objection” and “object” were used 772 times during the two
depositions.

Id. at pp. 2-4; ECF 54-1, 54-3.

Plaintiff argues that

the number of objections “has crossed the line of making and
preserving a record to being disruptive per se.”
p. 4.

Plaintiff’s Motion,

Plaintiff also argues that defendants engaged in “Rambo

litigation” and that, in light of the financial resources of
defendants and their counsel, “[t]he interference with the Plaintiff
pro se’s depositions is thus especially egregious, abusive, and
disruptive.”

Id.

The number of objections “has cost Plaintiff

valuable time and money” because the objections extended the length of
the depositions by an estimated 64 minutes and increased the cost to
transcribe the depositions by an estimated $121.98.

Id. at p. 5.

Plaintiff’s Motion seeks the following relief:
1) That the depositions of Krishnan Ramachandran and Sham
Vaidya be ordered to be permitted to be retaken within
federal rule;
2) That the cost of retaking the depositions, including
sitting time and transcript costs for Krishnan Ramachandran
and Sham Vaidya be ordered to be paid by the Defendants;
3) That the Plaintiff’s attorney’s fees for of [sic]
retaking the depositions, including the time necessary for
Plaintiff’s Counsel to develop questions for the Defendants
Krishnan Ramachandran and Sham Vaidya be ordered to be paid
by the Defendants;

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4) That the depositions of the Defendants Krishnan
Ramachandran and Sham Vaidya currently on file with the
Court be ordered stricken from the record;
5) That should the Defendant prevail for the purpose of a
Title VII action, that any costs associated with any of the
depositions of the Defendants Krishnan Ramachandran and
Sham Vaidya be disallowed if any costs are awarded to the
Defendants;
6) That the Court specifically order the Defendant’s [sic]
Counsel to comply with the federal rules regarding the
taking of depositions by parties in such language that the
Court may decide is appropriate to prevent the deposition
process from being adversely disrupted.
7) That sufficient time be provided to Plaintiff’s Counsel
to obtain and review the depositions and then respond to
the Defendants [sic] motion for summary judgment.
Id. at pp. 6-7.
Plaintiff appears to seek sanctions under Fed. R. Civ. P.
30(d)(2) and 28 U.S.C. § 1927.

See Plaintiff’s Motion, p. 3.

Rule

30(d)(2) provides that “[t]he court may impose an appropriate
sanction--including the reasonable expenses and attorney's fees
incurred by any party--on a person who impedes, delays, or frustrates
the fair examination of the deponent.”

Fed. R. Civ. P. 30(d)(2).

Under 28 U.S.C. § 1927, “[a]ny attorney . . . who so multiplies the
proceedings in any case unreasonably and vexatiously may be required
by the court to satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such conduct.”

The

Court finds that sanctions would be inappropriate under either
provision.
First, although defendants’ counsel made numerous objections
during the depositions of defendants Ramachandran and Vaidya,
plaintiff does not argue that the questions posed by him – at a time

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when he was proceedings without the assistance of counsel - were not
objectionable.

The fact that defendants raised numerous objections

does not, by itself, demonstrate that defendants’ counsel acted
unreasonably or impaired the fair examination of the deponents.

The

Court also rejects plaintiff’s characterization of defendants’
litigation tactics as “Ramboesque;” even accepting plaintiff’s
estimate of increased costs, defense counsel did not “unreasonably and
vexatiously” multiply the proceedings.

See 28 U.S.C. § 1927.

Counsel

does, after all, have the right – and indeed the duty - to object to
improper questions at a deposition, even if the opposing party is
proceeding pro se.

Finally, it is significant that plaintiff does not

claim that he was prevented from asking any questions during the
depositions as a consequence of the number of objections raised.
Indeed, both depositions were concluded by plaintiff in well under
seven hours.

See Fed. R. Civ. P. 30(d)(1); ECF 54-2, pp. 1, 242; ECF

54-4, pp. 1, 196.
Accordingly, Plaintiff’s Motion for Sanctions and to Reopen
Discovery and for Extension of Time to Respond for Summary Judgment,
ECF 52, is DENIED.
Plaintiff’s Motion to File under Seal and Notice of Filing
Redacted Depositions, ECF 54, is GRANTED. The Clerk is DIRECTED to
file ECF 52-3, 52-4, 52-5, and 52-6 under seal.

July 29, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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