Schoolcraft v. The City Of New York et al, No. 1:2010cv06005 - Document 199 (S.D.N.Y. 2013)
Court Description: OPINION: For the reasons set forth below, City Defendants' motion is denied, Defendant Mauriello's motion is denied and Medical Defendants' motion is denied in part. Plaintiff's motions are denied. As noted above, because of Plaintiff's failure to serve a proper Rule 30 notice of fines or sanctions will be imposed. It is so ordered. (Signed by Judge Robert W. Sweet on 11/20/2013) (rsh) (Entered: 11/21/2013)
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Schoolcraft v. The City Of New York et al Doc. 199 USOCSDNY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DOCUMENT ELECI'RONICALL\ '''lFO -x weft: D HLLD:( 1- '2/-;:-1 >::5, ADRIAN SCHOOLCRAFT, Plaintiff, 10 Civ. 6005 - against OPINION CITY OF NEW YORK, et al., Defendants. --- ------ ----x A P PEA RAN C E S: LAW OFFICE OF NATHANIEL B. SMITH III Broadway Suite 1305 New York, NY 10006 By: Nathaniel B. Smith, Esq. fendants MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE CITY OF NEW YORK 100 Church Street New York, NY 10007 Suzanna P. Mettham, Esq. At for Jamaica Ho al Medical Center MARTIN CLEARWATER & BELL LLP 220 East 42nd Street, 13th Floor New York, NY 10017 By: Gregory John Radomisli, Esq. 1 Dockets.Justia.com Attorneys for Dr. Isak Isakov IVONE, DEVINE AND JENSEN, LLP 2001 Marcus Avenue Lake Success, NY 11042 By: Brian Lee, Esq. SCOPPETTA SEIFF KRETZ & ABERCROMBIE 444 Madison Avenue, 30th Floor New York, N.Y. 10022 By: Walter A. Kretz, Jr., Esq. -Bernier CALLAN, KOSTER, BRADY & BRENNAN, LLP One Whitehall Street New York, NY 10004 By: Bruce M. Brady, Esq. 2 Sweet, D.J. City Defendant De Defendant s") , ("Mauriello") Isak Isakov Deputy ("Isakov") Defendants") Inspector have moved June 2013, and Dr. with for which Adrian Defendant JMC the and Isakov lifting of the enjoined Schoolcraft Mauriello amended wi has order. portions of Maur "City Mauriello expenses related to i leave Dr. ("Aldana- the "Medical City unction dated further Department for administrative ("NYPD") or to inst "Schoolcra file an "). answer Medical Defendants have moved for a aintiff llo's all ("Plaintiff" moved counterclaims. protective Steven Lillian Aldana-Bernier proceedings by the New York Police aintiff or " ( "C have made several motions before the Court. Defendants 28, York and Defendants Jamaica Medical Center ("JMC"), collectively Bernier", New of has moved counterclaims the cancelling to and of strike for the certain deposition Aldana-Bernier deposition. For motion Medical is t reasons set denied, Defendant Defendants' motion forth below, Mauriello's is denied motions are denied. 3 motion part. ty is Defendants' nied Plainti and 's Prior Proceedings A detailed provided in granted this in part recitation Court's of opinion 10 2011). Civ. 6005, Familia 2011 WL facts of May 6, dated and denied in part Medical Center's motion to dismiss. N.Y., the the 2011, Jamaica De case is which Hospital See Schoolcraft v. 1758635, at *1 (S.D.N.Y. May 6, Y with those facts is assumed. City Defendants' Motion to Lift the Injunction Is Denied Prior P and Facts In or about May 2013, City Defendants regarding may claim sciplinary cha Plaintiff became concerned that the of collateral estoppel s against Plaintiff by the NYPD in future motions and/or trial of the instant matter. On June 10, 2013, aintiff filed an order to show cause as to why an order should not be issued staying all further administrative proceedings against Plaintiff by the City and the NYPD. time, an administrat At the hearing was scheduled to begin on June 17, 2013 (the "HearingH): re [were] two sc linary matters pending against 4 The Plaintiff. charges that on October 31, 2009 incident giving rise to the instant - the date of action absent Plaintiff failed to comply with orders, from work Departmental to fai without property, impeded surrender a rifle second, which primarily October 31, a to appear at leave, an to safeguard investigation, rges that Plaintiff failed Department Advocate's fice, failed to ma available a fai be examined at the Department restoration of duty, of Department Advocate's iled to noti If Surgeon, fail to Office for the Department s current residence, and impeded investigators. Schoolcraft v. City of N. Y., *2 June (S.D.N.Y. citations omitted). stayed 28, 10 Civ. 6005, 2013 WL 3283848, I If) • ("Schoolcra 2013) at (internal The Court granted the order and tempora ly Hearing against Plaintiff until July I, 2013. The issues: by was h to report to his resident precinct, appear The th Plaintiff's conduct absent from work without leave, to and in his possession. als 2009, the iled was "( 1) preclusive parties whether effect, then the submitted outcome pursuant to 5 of the briefing the on Hearing doct ne two would of central have a collateral estoppels, so as to interfere with the Court's adjudicate this can and against 3283848, and (2) enjoin the Heari should injunction prelimina enjoined act all further in fl so, The June 28, whether Court 2013 lly the Court granted by Schoolcraft and the I NYPD 2013 Court found that the Hearing could effect City that the Hearing was enjoined. Defendants letter on October 9, 2013. that to agreed moved to lift the Opinion, proceedings "Injunction") . at *7. has its if administrat aintiff preclus even lity to WL a Id. Injunct via In its letter, City Defendants state not raise the affirmative of collateral estoppel in the instant matter concerning any issues address in the NYPD disc linary submitted briefing on the motion, Hearing. parties and oral arguments were held on October 16, 2013, with supplemental arguments on November 13, 2013. The matter was marked fully submitted on November 13, sciplina action for 2013. The (i) Hearing intiff's currently failure to seeks appear Advocate's Office while on suspension on or about December 3, ent 2009; (ii) at the NYPD Department absent without Plaintiff's re leave sal to allow to an NYPD Surgeon who sought to examine Plaintiff on or 6 about his December 3, precinct; 2009; (iv) (iii) Plaintiff's Plaintiff's failure failure to report to report to to the NYPD's fice on or about December 4 and December 7, Advocate Plaintiff's failure ilure and telephone reside Rockland, Westchester, Counties to number; investigators to (vi) were the noti the City Putnam, Orange, and who within NYPD to New Nassau of Plaintiff's attempting of his 2009; or notify York of Plaintiff or Suffolk residence impediment (v) and NYPD of his waiver of restored to duty on January 31, 2010. ability to The Motion to Lift the I At issue is unction Is Deni whet collateral estoppel is suf Injunction. In ty Defendants' cient to warrant the removal of the Schoolcraft I, the Court set the Injunction "pending the resolution of this action or a determination by the City that its departmental proceeding will not have a preclusive ef ct on the issues 2013 WL 3283848 , raised *7 . this action." Schoolcra I, While the City has waived collateral estoppel on the issues raised in the Hearing, Plaintiff obj ects to the li ing at in of the reexamine whether the I unction. Inj unction at this time. 7 As such, the Court will should be maintained in place As in previously whe Schoolcra r the Court should maintain the Injunction must be analyzed within the framework held of that district r "princ court v. les from Harris of 401 U.S. federalism interfering and 2d Mackell, applied to McCune v. are 191, 401 u.S. against an y nding with ," to prevent immediate irreparable inju Supp. (1971). 203 66, (E.D.N.Y. 69 icer. Frank, dealing proceedings See McDonald, 1152, 521 F. with a county pre ude cr a nal where necessa Bess v. 459 (quoting Samuels v. Younger abstention has been (1971)). administrative 0 2006) Younger state in very unusual situations, proceedings F. 37 by a ice 565 F. Supp. 1158 police (2d Cir. rtment at 38; see 1975) department's so ("That we disciplinary proceeding rather than a state court action is of little moment. A proceeding in a applicability of state r. ") ---"'-- As the Court exp "Younger are met: an court is not a -requisite to (citations omitted). ined in Schoolcraft I: stention is required when three conditions (1) there is an ongoing state proceeding; important proceeding; state and (3) interest the is implicated in state proceeding affo (2) that the federal plaintiff an adequate opportunity for judicial 8 the review of Diamond 282 F. federal the claims." constitutional However, at 198. "a ral court may nevertheless intervene in a state proceeding upon a showing unusual rei of 'bad faith, circumstance that would or call any r ot equitable Younger, 401 U.S. at 54). Id. f.'1f rassment Schoolcraft I, 2013 WL 3283848, at *3. There r ----'---"'-'-- abstention established rather an than the an rest 0 state in conducting Plaintiff that via at *3 no ys to be which has not hearing dismissal. See City had administrative leave consecutive City departmental aintiff s r to dismiss to (noting that NYPD who five a the summa Code allows any member of for ceeding" However, apply. 2013 WL 3283848, position necessary in "ongoing could dismissing Schoolcraft I, taken is ng was NYC Administrative s been absent without dismissed by the NYPD without notice). The nistrat and the NYPD t rges City waited three wai a er filing Plaintiff to initiate the Hearing three months unction to indicate its years a er Schoolcraft I and sire to waive collateral estoppel. 9 The City has not established that an important state interest is I implicated if trial in 3283848, is at unction were to continue, case *5. As e approaches. such, and t Schoolcraft, circumstances do t date for not 2013 WL support a r abstention. finding of ---"'-- Having concluded that abstention is not required under Injunction injunction, is merited. t the me ts, mer combined deci In order to or and (b) (2) either (a) a preliminary the possibility of a Ii kelihood of success on a sufficiently serious question going to the with a balance of the favor of the moving party." y obtain movant must demonstrate "( 1) irreparable harm; s in determine whether continuation of Court must r, York, 554 F. Supp. 2d 483, 487 rdships tipping Mullins v. Ci (S.D.N.Y. 2008). Plaintiffs have established both elements. The PIa iffs note that administrative trial would interfere with an interceding NYPD s current action as any NYPD proceeding would take time and energy away from getting the instant matter ready for trial. The parties are currently in discovery a heavy, extens ly negotiated schedule. The issues presented in the NYPD Hearing likely will relate to the topics at issue this litigation. 10 It will also allow s, De who have already over 21 hour of examination, noted deposed Of cer above, the City Given such factors, s at Mullins, *5-6; NYPD sought to question 554 any rges must be resolved 2d Supp. F. I, 483 2013 WL (finding nary injunction where the iff a provided See Schoolcraft rable harm and granting a prel i not removal of the Injunction would constitute irreparable harm. 3283848, for another opportunity to examine him lanations as to why the disciplinary at this time. Schoolcraft regarding statements made during a deposition). As to the second ctor in this Court's dete of whether to maintain t Injunction, to I concede detailed in Schoolcra allegations in t abduction of Of merits action". and Second Amended Id. lcraft there is a stions serious at *6 contention " Compla t awful and unjustified as cer S 2009 demonstrate City Defendants Plaintiff's dramatic recordings of from his home r 31, likelihood of success on the going to (citation omitted). the mer s of City De this s again , and this point. the City appears to De and on Oct have not responded to this argument in its latest br City ion ndants contend 11 that the st s already However, prejudiced Defendants. the NYPD delays counter this contention since if the charges are established the result will be Schoolcraft's discha and the termination of his rights, the same result as dismissing Plaintiff via summary dismissal. The ea for effi lays counter the City Defendants' promptness, and no prejudice will occur to the ency and City if the Hearing is enjoined until resolution of the instant matter. Defendant Mauriello's Motion to Amend And Plaintiff's Motion To Strike Are Denied Prior Proceedings an? Facts Mauriello, defendant the a Deputy Inspector in t instant matter. Mauriello and grant § 1367 (a) Defendant is a named September 24, counterc ims against tortious interference Proposed ction over counterclaims proposed by Mauriello leave to serve answer amended with counterclaims (the "Proposed Answer U Mauriello's 2013, se supplemental juri Mauriello moved this Court to exe pursuant to 28 U.S.C. On NYPD, Answer includes ) the • state law Plaintiff in his individual capac with employment relationship Mauriel 's with the City of New York and prima facie tort. 12 y for The gravamen of llo's Mau counterclaims intiff's ("SAC") and later illegal t ln attempts quota tigated a Mauriello's role in to Plaintiff his to iff Pla s pre nct, intimi e the the standard refusal and icy. quotas, in Complaint to adhere NYPD t dis as a Due to Mauriello evaluation against enforcement defendant ello quota defense Amended strict named Y with a Second expose in ign his response to his to policy 25-254. ilure Plaintiff's claims. alleges from branch of an officers him. SAC fendant for Plaintiff's allegedly 2008 to gave retaliated against Plaintiff. The Proposed Answer all s that on or around October 7, 2009, Plaintiff planned, with the aid of his false foundation for claims P r the City Kret z, Jr. by making unfounded supervising of hoped Declarat 110. <J[ 4; Kretz of Walter A. Decl. Ex. A <J[ s that Plaintiff intended to carry out the Mauriello all father Decl.") to lay a intiff intended to assert against to harm Maur ("Kretz ther, and/or exaggerated accusations cers of the 81st precinct, to make wrongdoing in the 81st p Mauriello to get fired. the 110 s <J[<J[ an against Plaintiff and his for the and throughout the NYPD, Kretz Decl. 3. all caus 4 5. Mauriello's and proposed counterclaims rely primarily on the recording of a 13 conversation 2009, between whi was P intiff and that rout ly crime Pla iff caused at reports instead as on recordings to help create were October the contends instances of ("QAD") of responsible improperly downgraded, two involving grand lary, all reported directly to him, to be lost property, that while downgrades to and caused improper crime for such six 81st Precinct, out to them to do so, taken or not documentation at least incidents. 6. sixteen Assurance Division aintiff actually Mauriello al ges was that crime victims would later return to compla that their reports were not is up. improper issue CJ[ instances could readily discover. The ld. identified Quality reporting, three and in some followed of Plaintiff NYPD's Plaintiff anticipated that t to the lAB was appearance other incidents of crime not to be recorded at all. Mauriello 7, iff's apartment. least three incidents, larceny and one of bu recorded Pla 110 alleges that father Ci t Y from produced by able to retrieve from a computer Maur his handling of would crime Plaintiff reached then reports result that QAD ld. was marked held on November 13, 2013. 14 fully submitted and arguments iello's Motion To Amend His Answer Defendant With . R. Civ. for P. l5(a) sets ng pleadings before tr (1) the general p 1: Amending as a Matter of se. A party may amend its pleading once as a matter of course within: it, or (A) 21 days after se (B) if the pleading is one to which a re pleading is required, responsive plead 21 days after service of a or 21 days after service of a motion under Rule 12(b), (e), or (fl, whi r is earlier. (2) Other Amendments. amend its pI In all other cases, only written consent or with the a party may opposing rty's court's leave. The court should freely give leave when justice so requires. Fed. R. Civ. P. 15(a). amend is within t "A decision to grant or sound discretion 15 of t a motion to trial court." Krumme v. 1998); see 1243883, an WestPoint Stevens also Nordco, at *2 (S.D.N.Y. opportunity to Inc., A.S. v. Dec. 21, amend 143 F.3d s, is 71, 88 95 1999) (2d 77 53, Cir. 1 999 WL ("[TJhe grant or denial within t discretion of the District Court and leave sought should, as the rules require, be freely given.") omitted) . (internal " [C]onsiderations lay, of udice to the opposing party [are] court's discretionary autho Krumme, 143 F.3d at 88 (quoti 742 F.2d 54, 58 (2d Cir. in dete prej udicial is the degree disposi tion of the action." nCo. y deny Barrows v. it Krumme, _ _ faith, leave to "One of the most which v._ _Siemens bad and amend." Forest Laboratories, important amendment whether to citations and touchstones of a district to 1984)). considerations H.L. Ha marks quotation would 143 delay F. 3d at stems, _ ___ would the 88 112 F.R.D. be final (quoting 417, 419 (S.D.N.Y. 1986)). The counterclaims Court are s 11 t first law . . . 4710377, statute In re If at *14 1 tort countercla "[T]he r limitations is a substant examine whether applicable tations (S.D.N.Y. for proposed statute of question and thus defined by state ssion Const. Liti n.16 the Aug. defendant 10 Civ. 4262, 2013 WL 30, 2013). The state Mauriello's prima cie is ei ther one year or three years, 16 ng Morrison on what the essence of the claim is deemed to be. v National 19 Broadcast N.Y.2d The statute of limitations for Mauriel 459 (N.Y. Dean Witter & 12 Co. 1967). 's tortious interference CP1R § 214 (4); see also, counterclaim is three years. v 453, N.Y.3d 132, IDT 141 (N.Y. 2009) . The Proposed Answer seeks to amend Mauriello's previous answer, and the federal rules for whether the amendment relates back, Const. 1i ti a procedural applies. 2013 W1 4710377, at *14 n.16 evaluating whether procedural question law."). question, a proposed and is, amendment therefore, In re Mission ("[TJhe standard for relates back governed by is a federal Fed. R. Civ. P. 15(c) allows an amendment to a pleading to relate back to the date of the ori nal pleading when "(A) the statute law that provides allows relation ba defense that occurrence Civ. P. set applicable i [or] (B) arose out of out 15(c) (1). in However, of limitations the amendment asserts a claim or conduct, the original " [s J tate law transaction, pleading." also Fed. ermines or R. the related questions of what events serve to commence an action and to toll the statute of limitations in such cases." 1 Sea Trade When Fed. R. Civ. P. 15 was amended in 1991, the noted with regards to Fed. R. Civ. P. 15(c), "Whatever may be the controlling body of limi tations law, if that law affords a more principle of relation 17 Co. Ltd. v. FleetBoston Financial Corp., 2786081, at *2 Oiler, (S.D.N.Y. 889 F.2d 424, a (2d Cir. "not barred 2006) (quoting 1989)) Personis Under N.Y. proposed counterclaims first were not C.P.L.R. In engaged in a it was v. time the claims asserted in the complaint were interposed." the court if 2006 WL the Sea Trade, claim is 26, 10254, barred at § 203 (d), 426 Sept. 03 Civ. two-step process, related back to where the the date of the original answer pursuant to Rule 15 and then to the date of the complaint as per New York's tolling provision. Id. The Sea Trade court found that New York's tolling provision rendered the counterclaims timely if they would have been timely as date of the filing of the complaint. The Complaint was 2010. Defendant Mauriello of the Id. filed and interposed on August 10, alleges the that Plaintiff plan against Mauriello on or around October 7, enacted 2009. Mauriello suffered his alleged injuries as a result of the scheme at some subsequent time. accrued less Adopting the than Sea Thus, one Trade Mauriello's year before court's counterclaims the tolling Complaint analysis, would was the filed. Proposed Answer would relate back to when the Complaint was filed. C.P.L.R. § 203(d). have N.Y. Nei ther the one-year period nor the three- year statute of limitation periods for Mauriello's counterclaims back than the one provided in this rule, it should be available to save the claim." Fed. R. Civ. P. 15 advisory committee's note. 18 would as of August 10, expi As such, 2010. Mauriello's proposed counterclaims are timely. the of the (2d Cir. 856 amendment V. Bd. ("Reasons 1981) most opposing important, r 12 Civ. a 28, ess is judice to the of non-movant, oppos 654 proper denial resulting Invs. undue or bad fa the ., an answer evidence to F.2d 843, of leave prejudice L.P. 2013 WL 4539691, 2013) ("Leave to there undue delay, to futility of the amendment, tal 7164, time-barred, Fluor the Hillair party.")i not judice lude undue delay, bad fai amend Aug. is or State Teachers Ret. party. Answer the leave to amend for Court may futili ty Proposed v. to the I ed *2 (S.D.N.Y. 'should not denied delay, at bad futility.''') faith, undue (quoting Milanese 244 F.3d 104, 110 (2d Cir. 2001)). this action was The Complaint fil r 13, 2010, and 2010, with an Amended Complaint filed on SAC on October 1, SAC on January September filing 24, of the 2013, 10, 2013. t 2012. Mauriello fi and Mauriello 1 Complaint, filed waited one the SAC and nine months after the fili 19 on August 10, an Answer to Proposed ree years after the Answer on since the filing of of his first answer to bring forth his propos counterclaims. three s years, the part thousands practice, Plaintiff has been of have for have three been full and the depos ions of the motion exchanged, days inspections of the 81st Precinct and Jamaica Ho conducted over the past extensive engaged documents deposed Further, of the testimony, ital have been Defendants have begun. Mauriello's proposed amendment will require additional rounds of document discovery downgrading of amendment will deposition of the alleged on crime reports also require several other to dama and Mauriel at the The expend proposed additional lo's for preparing resolution, trial and in discovery superiors reputation. final 1983) (stating lay, the less that "t longer showing of prej udice" t F.2d riod to the resolution of the Plaintiff and upholding scovery 44, of an to and spute's 47 See (2d Cir. unexplained the district court's the proposed amendment due to an over two- year delay in defendant's motion to amend) i v. Allowing the 11 be required of the nonmoving party in terms decision to rej ect N.A. and underlying 704 v. the The relating would the of Precinct. conducting delay s which will cause undue prejudice on Plaintiff. Evans of a counterclaims resources 81st NYPD counterclaims will certainly delay the action. specif additional senior Mauri on Meyer, 10 F.3d 1293, 1298 20 Continental Bank, (7th Cir. 1993) (district court did not de ndant to defendant wa abuse amend its discretion answer to add ed more than two require additional discovery). in re ing to allow counterclaims where the rs and the amendment would As such, the Court finds that granting leave to serve the Proposed Answer would cause undue delay and prejudice Plaintiff. PIa iff's Motion To Strike Is Denied Given that Mauriello's motion to amend is denied, Plaintiff's motion to strike is ied as moot. The Medical Defendants' Motion For A Protective Order Is Granted In Part And Denied In Part And Plaintiff's Motion For Expenses Is Denied s and Facts Prior Pro Medical Defendants have moved the Court for a protective order enjoining Plaintiff's method of video recording the deposit of the Medical Defendants. was scheduled to depose AldanaBern the depos Plaintiff's attorney r on October 25, 2013. For ion, Plaintiff's attorney brought his personal Sony Handycam video camera, and indicated at the deposition that he intended to use the deo camera to videotape the deposition. 21 AldanaBernier's attorney objected to Plaintiff's use of the camera, objecting specifically to t 30 notice of intent to lack of a Fed. R. Civ. P. deotape and the methods us Plaintiff's counsel for the deposition. An by official court recorder was present. Medical Defendants submitt a letter motion requesting for a protective order on October 30, 2013. issue was marked as fully submitted and arguments were held on November 13, 2013. The Motion For A Protective Order Is Granted In Part And Denied In Part At issue is whether (1) Plaintiff's counsel violated the Federal Rules of notice of his intent to and (2) viI Procedure in failing to provide otape t AldanaBernier deposition Plaintiff's attorney can videotape a deposition with himself as the video camera operator where an offi al court reporter is also present. Fed. R. Civ. P. 30(b) provides that a party who notices the deposition must state the method for reco ng the testimony and any additional methods for recording must be noticed as well. Rule 28 provides that a deposition must be taken before an officer authorized to administer oaths 22 by law. rties to Rule 28(c) disqualifies an attorney for the Ie 28. qualify as an officer under Plaintiffs and C y Defendants p ously had entered into a st lation that allowed for the video recording of depositions of parties represented by attorneys Defendants to be videotaped (the "Video Reco Defendants Deputy Ch for Ci Stipulation") . f Marino's ("Marino") and C ain Theodore Lauterborn's ("Lauterborn") depositions were videotaped in manner Plaintiff seeks to depose AldanaBe Recording Stipulation does not waive to any video recordings made. noted ir intent to er. The Video City's right to object City Defendants have subsequently withdraw from the Video ng Stipulation. Medical Defendants were not a Recording Stipulation entered Defendants. o between Plaintiff and C Medical Defendants contend, and Plaintiff does not spute, that at PIa party to the Video time of the AldanaBernier deposition, iff had not served a Rule 30(b) notice of counsel's intent to videotape. 2 As such, Court provide proper notice required under 2Plaintiff's counsel has subseq'uently served a the parties. 23 that Plaintiff iled to . R. Civ. P. 30 (b) . d R . C'l V. P . 30'b) \ notice on r Plaintiff's attorney Turning to the issue of can himself operate a video recorder to record a sition if proper notice is served, the Court notes that Plaintiff's method has caused the Medical and City Defendants of video reco significant concern. Plaintiff's method of video recording, used and in the Marino Laute Plaintiff's counsel states he int deposit out in the Fe irements and sa ral Rules of Civil Procedure. luding through 30(b) (5) (A) (i) (v) , in s elf operated the Civ. P. 28 officer, since attorney logistical Plaintif 's method of several rs of confi 11 face diffi R. Civ. P. requirements the Marino of Rule Lauterborn also note t Plaintiff's deo recorder not a Fed. R. R. Civ. P. 28(c) disqualifies an the parties to Other and cal t Medical De depositions. counsel the rds set Plaintiff's irements of counsel did not comply with the 30(b)(5), which s to use for all subsequent s not follow the depositions, and lify as an officer. issues otaping. indicate This instant case contains ntiali ty, and t ty in difficulty parties have characterizing the level conf iali ty that Current , confident 1 testimony is transcribed into a s lies for each 24 d of tion of a testimony. rate Plaintiff's counsel transcript from nonconfidential testimony. uses a single camera, and for the confidential portions of testimony, counsel states the video is going to the confidential ion, stops the recording and t continues the recording. aintiff's counsel has not indi ed to how the recordings will be ls. rate the various confidentiality Medical De s also note of the microphones video camera microphone built into the camera. The ical issues. re are no other than internal There will no way to ascertain as to who is speaking on the tape at any particular time unless was the witness. failed to City De for Marino's that was Plaintiff's counsel has also s with a copy of the recording sition, while court reporter has already provided copies of the transcr counsel deposit also failed to record portions Plaintiff's of Lauterborn's when the video camera's memory ran out prior to deposition's completion. captured off the record Marino and Lauterborn video camera was also left on and scussions between counsel in sitions. Medi Defendants ss concern Plaintiff's counsel has made several mistakes that may matching t video with stenographic record transcr There is dearth of case law in the Southern 25 strict .. .... regarding whet r a party's attorney can videotape a deposition In Carvalho where an of cial court reporter is also present. v . Rei d , 193 F . R . 0 . 14 8 ( S . 0 . N . Y. 2 0 0 0) , rul the mag i s t rate j u d g e plaintiff was not via a telephonic ruling that a allowed to videotape her own deposition where provide proper Rule 30 (b) notice and she did not lure to arrange to r have the videotaping conducted by an appropriate person pursuant to Rules 30 (b) (4) and 28 (c) . Id. at 152. v. N. Am. court in Marlboro Products In contrast, the ., Phil 55 F.R.D. 487 (S.D.N.Y. 1972), allowed plaintiff to operate a tape recorder in depositions for purposes of economy. Id. at 489. Petitioners in Marlboro did not challenge the recording on Rule 30(b) notice grounds. Given the manner in which Plaintiff's counsel has chosen to operate vi os taken pursuant interpretation. to vi Medical 0 to camera there is a such methods is sk that any subject to The failure to serve proper Rule 30 (b) notice Defendants and the potential difficult s surrounding the video recordings were appropriate grounds for adjourning the deposition. Although the Plaintiff may take video recordings in depositions recordings taken by counsel will not his own purposes, admissible. those See Rice I s 114 F.R.D. 26 647, 651 (M.D.N.C. 1987) rned by Rule plaintiff to video record the deposition is not 30 (b) (4) as much as by the rmit ("[T]he issue of whether to Court's ral authority to regulate ition process."). iff's are inappos cases cited by PIa than Marlboro, none of the cases cit strict Southern or a Petitioners in the cases district by PIa in Other iff were in the Second Circuit. llenge any video recordings d not based on respondents' failure to comply with Rule 30 (b) notice requirements. Importantly, all of the cases operation of video camera rout levels sent in the ipment; involved confidentiality instant matter propels the task of videotaping a deposition beyond a simple task to a complicated one. See Marlboro, 55 F.R.D. 487; Maranville v. Utah Valle Univ., 11 cv 958, 2012 WL 1493888 (D. oneer Dr:i ve, LLC v. Nissan sel Am., Inc., 262 F.R.D. 552 06120, 2007 WL (D. Mont. 2009); 2155573 (W.O. Pa. Utah April 27, 2012); y 25, 2007); Anderson v. F.Supp.2d 619 (W.D.N.C. 2007); Ott v. St Dobson, Law Firm 169 F.R.D. 380 (E.D. Oklo 1996); Rice's Toyota World, 114 F.R.D. 647. Plaintiff's 27 7 Plaintiff has also requested for an order requiring AldanaBernier's counsel to pay expenses associated with the canceling of the AldanaBernier deposition. 30 (c) (3) states: whether Fed. R. Ci v . P. "An objection at the time of the examination a to party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of depositionmust be noted on the record, but the examination still proceeds." 37 (d) (1) (A) (i) under Ru ing served wi deposition." Sanctions are appropr where "a party ils, after proper notice, to appear for that person's \\Failure to appear is strictly construed in s Circuit and only occurs where a deponent literally fails to show up for a deposi tion session." Salahuddin v. Harris, 782 F. 2d 1127, 1131 (2d Cir. 1986). As noted above, because of Plaintiff's failure to serve a proper Rule 30 notice no fines or sanctions will be impos 28 It is so ordered. New York, NY November Z (J, 2013 fROBERT W. SWEET 29
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