Equal Employment Opportunity Commission v. Sterling Jewelers, Inc., No. 1:2008cv00706 - Document 334 (W.D.N.Y. 2013)
Court Description: DECISION AND ORDER denying 301 Motion to Strike. Signed by Hon. Jeremiah J. McCarthy on 9/3/13. (DAZ)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. DECISION AND ORDER 08-CV-00706(A)(M) STERLING JEWELERS INC., Defendant. ______________________________________ On February 6, 2013, plaintiff Equal Employment Opportunity Commission ( EEOC ) and the Arbitration Claimants in Jock, et al. v. Sterling Jewelers Inc. (AAA Case No. 1 160 00655 08) (the Arbitration ) jointly deposed Barry Ferhnolz, a Division Vice President with defendant Sterling Jewelers, Inc. ( Sterling ). The next day, Sterling filed an emergency motion [301]1 to strike certain portions of Mr. Ferhnolz s deposition testimony and questioning, which concerned the alleged consumption of alcohol and alleged inappropriate behavior at Sterling s managers meeting that occurred before January 1, 2001. Sterling s Memorandum of Law [302], p. 2 of 7.2 Sterling also seeks to prevent the EEOC from questioning other deponents about such matters in the future. Id. For the following reasons, the motion is denied, without prejudice to renewal. 1 2 Bracketed references are to the CM/ECF docket entries. A similar motion was filed in the Arbitration, which was denied by Arbitrator Kathleen Roberts. Burstein Declaration [307-1], ¶4 ANALYSIS In opposing Sterling s motion, the EEOC argues, inter alia, that the motion is premature. EEOC s Brief [307], p. 4. I agree. See ProBatter Sports, LLC v. Joyner Technologies, Inc., 2006 WL 5278236, *1 (N.D.Iowa 2006) ( The Motion [to strike] is premature. ProBatter has not filed a motion for summary judgment. If ProBatter files such a motion, Joyner may file a new motion to strike immediately. If ProBatter does not file such a motion and the dispositive motions deadline passes, Joyner may file a motion to strike Ms. Sommer s testimony from trial ); Randler v. Kountry Kraft Kitchens, 2012 WL 6561510, *14 (M.D.Pa. 2012). See also Pfohl Bros. Landfill Site Steering Committee v. Browning-Ferris Industries of New York, Inc., 2004 WL 941816, *1 (W.D.N.Y. 2004) (Foschio, M.J.), adopted, 2004 WL 1563262 (W.D.N.Y. 2004) (Arcara, J.) (referencing earlier order in the case denying a motion to strike an expert report as premature, without prejudice to refiling in connection with a motion for summary judgment). Sterling also seeks to prohibit the EEOC from questioning other witnesses about these matters. Sterling s Memorandum of Law [302], p. 5 of 7. Since this issue does not appear to have arisen in other depositions and the deadline for Stage I fact discovery has expired, I assume that this aspect of the motion is moot. Fourth Amended Stage I Case Management Order [324], ¶1 (setting May 13, 2013 as the fact discovery cutoff). -2- CONCLUSION For these reasons, Sterling s emergency motion to strike [301] is denied, without prejudice to renewal should the EEOC seek to use this testimony. SO ORDERED Dated: September 3, 2013 /s/ Jeremiah J. McCarthy JEREMIAH J. MCCARTHY United States Magistrate Judge -3-
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