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denying plaintiff's request to extend discovery because "[p]laintiff has not shown that her failure to complete discovery was anyone's fault but her own" and "plaintiff did not diligently utilize the time available to her to complete discovery, [so] there is no reason to extend that time."
Summary of this case from Wilson v. AnnucciOpinion
03 Civ. 2167 (LTS) (HBP).
August 14, 2007
OPINION AND ORDER
I. Introduction
I write to resolve the discovery disputes raised by plaintiff's letter dated August 14, 2006 and in her motion for a default judgment and other sanctions dated October 5, 2006 (Docket Item 166). For the reasons set forth below, both of plaintiff's applications are denied in all respects.
II. Facts
This is a copyright infringement action in which plaintiff, an attorney who is proceeding pro se, claims that the motion pictureBringing Down the House, its screenplay and draft scripts infringe a screenplay that she authored entitled Amoral Dilemma. Plaintiff's claims are discussed in detail in the opinion of the Honorable Laura Taylor Swain, United States District Judge, granting in part and denying in part defendants' motion for summary judgment. Flaherty v. Filardi, 388 F. Supp.2d 274 (S.D.N.Y. 2005). Familiarity with this decision is assumed.
In October 2005, I issued a scheduling Order setting the final pretrial conference in this matter for August 1, 2006. Since I believed that discovery would have been substantially completed by July 24, 2006, I scheduled a settlement conference for that date (the "July 24 Conference"). However, I received correspondence from plaintiff prior to the July 24 Conference voicing general gripes concerning discovery; accordingly, I advised counsel that the July 24 Conference would be a status conference rather than a settlement conference.
At the July 24 Conference, I sought to determine what discovery, if any, remained to be done. Although plaintiff made sweeping claims that defendants had denied her discovery, she did not identify any specific, relevant documents or information that the defendants had withheld. It became clear at the July 24 Conference that plaintiff had conducted no discovery at all other than (1) serving document requests to which defendants responded in the fall of 2005 and (2) conducting the deposition of Jason Filardi. Indeed, plaintiff specifically admitted that she had served no discovery requests in the seven-month period preceding the July 24 conference (Transcript of Conference held on July 24, 2006 ("7-24-06 Tr.") at 8). In addition, I pointed out to plaintiff that she had never made any specific application to me to compel discovery (7-24-06 Tr. at 9-10). After further discussion, plaintiff even admitted that defendants were not responsible for the delay in resolving the case that she had previously attributed to them (7-24-06 Tr. at 15). Nevertheless, plaintiff sought an extension of discovery. Given plaintiff's lassitude in pursuing discovery, defendants opposed the application.
Although I did not extend the discovery period at the July 24 Conference, in an effort to ensure that plaintiff had an opportunity to assert any specific discovery issues that she had, I advised the parties that I was setting a firm date for the submission of any open discovery disputes. Plaintiff stated she could make the motion within a week (7-24-06 Tr. at 36). Because this date sounded overly optimistic, I gave plaintiff until August 14, 2006 to make her motion. Specifically, the Order that I issued after the July 24 Conference provided:
2. If any party has any dispute with respect to any discovery responses served to date, such disputes are to be raised by letter or motion no later than August 14, 2006. Any applications made pursuant to this paragraph shall either include or quote the discovery request(s) and response(s) in issue and shall identify specifically the alleged deficiencies in the response.
3. Responses to any applications for relief made pursuant to paragraph 2 shall be served and filed no later than September 15, 2006.
(Order dated July 25, 2006, Docket Item 150). I further advised the parties that if either side sought to extend the discovery, they could make their application in their August 14, 2006 submission.
On August 14, plaintiff submitted a three-page letter, attaching certain exhibits. In this letter plaintiff sought (1) an open-ended extension of discovery; (2) an extension of time to September 29, 2006 to serve and file a motion seeking dispositive relief based on defendants' alleged discovery abuses; (3) an Order compelling defendants to explain the basis for certain objections they made at the deposition of Jason Filardi; (4) an Order compelling Jason Filardi to answer certain deposition questions; (5) an Order directing that defendants make the originals of certain documents available for inspection by plaintiff; (6) an Order compelling defendants to produce unredacted financial information concerning the motion pictureBringing Down the House, and (7) an Order that the Writers Guild of America produce unredacted versions of certain contracts. With respect to items 2 through 7, plaintiff offered no explanation at all of why she was entitled to the relief she sought.
Notwithstanding the fact that I never extended the August 14 deadline for the submission of discovery motions and notwithstanding that she had sought an extension until only September 29, 2006, plaintiff also filed a motion on or about October 7, 2006 seeking a default judgment and other unspecified sanctions for defendants' alleged discovery abuses. As discussed in more detail below, plaintiff's October 7 motion contains a substantial amount of rhetoric but almost no specifications of discovery misconduct by defendants that prejudiced plaintiff or prevented her from discovering facts relevant to her remaining claims.
III. Analysis
A. Plaintiff's August 14 Letter Application
Plaintiff's request to extend discovery in her August 14 letter application is denied. Plaintiff has not shown that her failure to complete discovery was anyone's fault but her own. As noted above, plaintiff did absolutely nothing to pursue discovery between the completion of Jason Filardi's deposition on November 15, 2005 and the July 24, 2006 status conference. Since plaintiff did not diligently utilize the time available to her to complete discovery, there is no reason to extend that time. Little v. City of New York, 487 F. Supp.2d 426, 435-36 (S.D.N.Y. 2007); Gotlin v. Lederman, 04-CV-3736 (ILG), 05-CV-1899 (ILG), 2007 WL 1429431 at *3 (E.D.N.Y. May 7, 2007) (collecting cases); see Stone Webster Constr., Inc. v. E-J Elec. Installation Co., 06-CV-5641 (BMC) (SMG), 07-CV-2102 (BMC) (SMG), 2007 WL 1989444 at *4 (E.D.N.Y. July 9, 2007); PSG Poker, LLC v. DeRosa-Grund, 06 Civ. 1104 (DLC), 2007 WL 1837135 at *7 (S.D.N.Y. June 27, 2007).
Plaintiff's application for an extension of time to raise her discovery disputes is also denied. On July 24, 2006, plaintiff represented that she would make her motion within a week. Given her pro se status, even though plaintiff is an attorney, I granted her an extra two weeks on my own motion. Plaintiff has not shown any valid basis to extend that deadline for a further six weeks.
Plaintiff's application for an Order compelling defendants to state the basis for certain objections asserted at the Filardi deposition is denied. The validity of objections asserted at a deposition becomes material only when the testimony to which objection is made is offered and the objecting party elects to stand on his or her objection. It is frequently the case that even where a valid objection is stated at a deposition, the objecting party will waive the objection when the testimony is offered. In the absence of a live controversy concerning an objection at a deposition, the basis for the objection is immaterial. Since there is no current dispute concerning the validity of any specific objection, having defendants state the basis for their objections would serve no purpose.
Plaintiff's applications to compel Jason Filardi to answer certain question posed at his deposition, to compel defendants to produce original documents and to compel defendants' and the Writers Guild of America's production of unredacted financial documents are also denied. My July 25, 2006 Order expressly directed the parties to set forth the bases for any applications they made to compel discovery. Since plaintiff's August 14 letter offers no argument at all explaining why the foregoing relief should be granted, plaintiff has failed to comply with my July 25, 2006 Order and has failed to establish any basis for the relief she seeks. Neither defendants nor I should be forced to guess at what plaintiff's theories for the production of this discovery might be.
B. Plaintiff's October 5, 2007 Motion for a Default Judgment and Other Sanctions
Although plaintiff's October 5, 2007 motion makes broad allegations of discovery and other misconduct by defendants, she has shown no basis for the imposition of any discovery sanction.
First, the motion is untimely. As noted above, the deadline for discovery motions was August 14, 2006. The fact that plaintiff requested an extension of that date is immaterial. Court ordered deadlines would be meaningless if a party could unilaterally extend the deadline by the expedient of requesting an extension; it is self-evident that a request for relief, without more, does not operate to grant the relief sought. Willemijn Houdstermaatschaapij BV v. Apollo Computer Inc., 707 F. Supp. 1429, 1441 (D. Del. 1989).
Second, a number of the arguments made by plaintiff have no connection with defendants' alleged failure to comply with their discovery obligations. For example, plaintiff repeatedly points out in her affirmation and memorandum of law that one of Jason Filardi's early drafts of the screenplay contained scenes in which an adult character engages in sexual activity that was observed by children. There is no dispute that these scenes were deleted from the script before the motion picture was filmed, nor is there any dispute that these scenes were not copied from plaintiff's work. Since the presence of these scenes is immaterial to the discovery issues and the substantive issues in the case, plaintiff's injection of this material into her motion is nothing but a ham-fisted attempt to cast defendants in a negative light and only establishes the poverty of plaintiff's position. Other similarly immaterial matters cited by plaintiff include Roy Disney's criticism of the management of the Walt Disney Company, the fact that one of the defendants' attorneys has written an article on the need for civility among attorneys, Filardi alleged untruthfulness in an interview with a magazine, the alleged fact that Filardi was wearing a recording device and may have ingested something at the deposition, alleged threats by defendants' counsel that there could be personal consequences to plaintiff from continuing the action or making discovery motions, alleged misstatements of the law in defendants' summary judgment motion and plaintiff's contention that Tobia had more to do with the drafting of the script than he admits. None of these matters has anything to do with the sufficiency of defendants' responses to her discovery requests.
If they were made, the "threats" plaintiff references appear to be nothing more than defense counsel's attempts to dissuade plaintiff from pursuing the action by indirect references to plaintiff's potential personal liability for costs or the expenses of discovery motions (see Affirmation of Marie Flaherty, dated October 6, 2006 ("Flaherty Aff."), ¶¶ 19, 22). Given the fact that summary judgment has already been granted dismissing plaintiff's claim for copyright infringement by the motion picture, the stakes in this action are fairly modest. It is, therefore, simply inconceivable that defendants' counsel would engage in acts of attempted extortion.
Third, although plaintiff cites a number of document requests that she contends were inadequately answered (Flaherty Aff. ¶ 110), for the most part she offers no evidence or argument that additional responsive documents exist and have not been produced. Although there are a handful of instances where plaintiff does offer some evidence or argument that additional documents exists (Flaherty Aff. at ¶ 110, pages 41-42), sanctions are inappropriate because plaintiff has not and cannot establish that documents are being withheld in violation of a court order.Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir. 1986) (sanctions under Fed.R.Civ.P. 37(b) can be awarded only where a court order is violated); Israel Aircraft Indus., Ltd. v. Standard Precision, 559 F.2d, 203, 208 (2d Cir. 1977) (same). Even if I deem the motion to be a motion to compel with respect to these categories, an award of relief is inappropriate because plaintiff has not stated that she has met and conferred with defendants' counsel and attempted to resolve these disputes without the court's intervention. Fed.R.Civ.P 37(a)(2) (A and B);see generally Apex Oil Co. v. Belcher Co., 855 F.2d 1009, 1019-20 (2d Cir. 1988).
Finally, plaintiff has also submitted the transcript and DVD's of Filardi's deposition which she contends establish misconduct by defendants' counsel. Although plaintiff has established misconduct by defendants' counsel, it does not appear that the misconduct prevented plaintiff from completing Filardi's deposition.
During a conference with plaintiff and counsel on November 10, 2005, I gave the parties my standard admonitions concerning the conduct of depositions, namely (1) colloquy should be avoided; (2) counsel should not make "speaking" objections unless the party conducting the deposition seeks the basis for an objection, and (3) instructions to the witness not to answer should not be given to the witness unless a question would invade an area of privilege or seeks information that is so irrelevant that the question is abusive. I also advised plaintiff and counsel at that time that if they had a dispute at the deposition that they could not resolve, they could call my chambers for a ruling.
"Speaking" objections should be avoided because they tend to prompt witnesses. Moreover, unless the deficiency in the question is one that could be rectified at the deposition, it is unnecessary for the party defending the deposition to register any objection whatsoever. Fed.R.Civ.P. 32(b), (d)(3)(B).
As noted in a leading treatise,
Rule 32(b) must be read in connection with Rule 32(d)(3), dealing with objections as to the taking of a deposition. Taken together these provisions make it clear that if the matter sought is within the scope of discovery, objection to its admissibility as evidence should be made at the trial or hearing when the deposition is offered in evidence and not at the taking of the deposition, unless the ground of the objection is one that might have been obviated or removed if made when the deposition was being taken.
8A Charles A. Wright, Arthur R. Miller Richard L. Marcus,Federal Practice Procedure § 2152, at 194-95 (2d ed. 1994) (footnote omitted); accord Rosary-Take One Prod. Co. Ltd. P'ship v. New Line Distrib., Inc., 89 Civ. 1905 (CSH), 1996 WL 79328 at *1 (S.D.N.Y. Feb. 23, 1996).
Despite these admonitions, defendants' counsel engaged in obstructionist conduct in direct contravention of my instructions and made a large number of baseless objections. A few examples are sufficient to illustrate the nature of counsel's conduct.
At one point in Filardi's deposition, plaintiff had him read a quote attributed to him in a magazine article in which he purportedly stated that he thought it's "`very important to read a lot of scripts'" (Transcript of the Deposition of Jason Filardi, annexed as Exhibit 5 to Flaherty Aff. ("Filardi Dep."), at 75). The following colloquy then occurred:
Kenneth Newman is in-house counsel for the Walt Disney Company. He is not counsel of record for any of the parties in this action. Accordingly, he had no business making any objections at the deposition.
As she was entitled to do, plaintiff had asked Filardi a question that called for a "yes" or "no" answer. The question asked whether Filardi believed that reading "a lot" of scripts was "very important" for a screen writer; Filardi did not respond with an unqualified "yes" or "no," but rather stated that "It's a hard one to answer — yeah. It's a good thing for a writer to do." Since Filardi neither answered the question directly nor did he state that he was unable to answer the question yes or no, plaintiff was entitled to ask the question again and press for a direct answer. Nevertheless, defendants asserted an objection that inaccurately characterized the record by stating that Filardi had answered the question. Mr. Conciatori went on to misstate the record a second time by stating that there was no question pending when the foregoing excerpt demonstrates that the question clearly remained pending.
Approximately 45 minutes later, the following colloquy occurred: sic
Q All right. I'd like to draw your attention to the exhibit marked 2, the screenplay, JAILBABE.COM. Is there a motion picture based on this screenplay, JAILBABE.COM? MR. MULDOON: Object to the form. MR. CONCIATORI: Objection. That's a term of art. BY MS. FLAHERTY: Q You can answer the question. A Yeah, I guess — I'm sorry. I don't know what you mean by base — did this — MR. MULDOON: No. Wait. Wait for a question please sir. BY MS. FLAHERTY: Q Why don't you — if you could tell me your understanding of what — based upon — a motion picture as being based upon a script is. MR. MULDOON: Object to the form. BY MS. FLAHERTY: Q Your understanding. MR. CONCIATORI: I'll allow him to answer that, although I'll note my objection of foundation []. Calls for a legal conclusion. THE WITNESS: I don't know of any movies based upon a screenplay. Movies based upon novels, movies based upon real-life facts. I don't know any movies based upon screenplays. It's not a term — it's not a — (Filardi Dep. at 102-03).First, counsel's gratuitously providing suggestive reasons for their objections violated the instructions I had given them for the conduct of depositions. Second, there is no prohibition in the Federal Rules of Evidence against a question that utilizes a term of art. If a witness does not understand the meaning of a word used in a question, he is free to advise the interrogating party that he does not understand the question. If the defending attorney believes the witness misunderstood a term or the question, he is free to correct the mistake either through cross examination or by the use of an errata sheet. There was no valid reason for Mr. Muldoon to interrupt Mr. Filardi's request for clarification. Fourth, contrary to Mr. Conciatori's objection, a question to a witness seeking the witness's understanding of certain terms is not, by any stretch of the imagination, a question seeking a legal conclusion. Given the lack of any legal basis for defense counsel's comments, I am forced to conclude that the colloquy was nothing more than an attempt to kick up dust and to fluster plaintiff.
Other examples of improper conduct by defense counsel include the following exchanges:
Q Okay. I'm sorry. I just want to make sure you understand my question. The first time you ever heard that I had a claim or — concerning BRINGING DOWN THE HOUSE, the writing, BRINGING DOWN THE HOUSE, was when an article concerning the lawsuit was in the paper? MR. CONCIATORI: I'm going to object to the form of the question. You mean so far as it suggests that you had a claim. You changed it to — you expressed a claim or served one — (Filardi Dep. at 120-21). Q Okay. You didn't — did you receive any letters concerning my name or me prior to when the lawsuit was announced in the papers? MR. MULDOON: I'm going to object to that. The time is all balled up. (Filardi Dep. at 121). Q Did you correspond by e-mail with George Tobia in 1999? A I'm sure — MR. MULDOON: Well, no, no. The question is do you know. MS. FLAHERTY: Excuse me. Please, do not testify. MR. MULDOON: Please, let the witness answer the question that you put to him. (Filardi Dep. at 205).The objections stated in the first two examples are not supported by any Federal Rule of Evidence. Mr. Muldoon's "all balled up" objection is particularly troubling. As noted above, if counsel believes that the direct examination has left a misleading record, his remedy is cross-examination or a correction by way of an errata sheet. Apart from the crude diction, stating in front of the witness that the question has the facts "all balled up" is suggestive and, therefore, improper. Fed.R.Civ.P. 30(d)(1) (If an objection is made at a deposition, it "must be stated concisely and in a non-argumentative and non-suggestive manner."). The third example is also noteworthy because not only does Mr. Muldoon interrupt the witness's answer and improperly rephrase plaintiff's question, he then goes on to berate plaintiff for not letting the witness answer the question notwithstanding the fact that it was Mr. Muldoon — not plaintiff — who interrupted the witness.
Additional examples of defense counsels' misbehavior exist in the record; the foregoing are sufficient, however, to illustrate the nature of their conduct.
I also note that plaintiff's conduct at the deposition was not exemplary. Plaintiff attempted to examine Filardi about salacious scenes contained in an early draft of his script even though they did not appear in the motion picture and plaintiff was not claiming they had been copied from her work (Filardi Dep. at 228-31). There could not have been any good faith basis for this line of questioning. Plaintiff also spent an inordinate amount of time asking plaintiff about other screenplay he had written and other matters unrelated to the screenplay in issue.
Although defendants' counsels' behavior at the Filardi deposition was improper, it does not necessarily follow that sanctions are appropriate. Under 28 U.S.C. § 1927, an award of sanctions is appropriate when the offending attorney "essentially destroys a deposition through excessive groundless objections or lengthy personal attacks on his or her adversary."Am. Fun Toy Creators, Inc. v. Gemmy Indus., Inc., 96 Civ. 799 (AGS) (JCF), 1997 WL 482518 at *8 (S.D.N.Y. Aug. 21, 1997);accord Sicurelli v. Jeneric/Pentron, Inc., 03CV4934 (SLT) (KAM), 2005 WL 3591701 at *3 (E.D.N.Y. Dec. 30, 2005), report recommendation adopted by, 2006 WL 681212 (E.D.N.Y. Mar. 14, 2006); Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001). Fed.R.Civ.P. 30(d)(3) provides that an award of sanctions is appropriate "[i]f the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent."
I have reviewed the transcript of the Filardi deposition in its entirety, and cannot conclude that defense counsel's misconduct destroyed the deposition or entirely frustrated the fair examination of Filardi. In almost all instances where the questioning was interrupted by unnecessary colloquy by defense counsel, Filardi nevertheless answered the question asked. Variations of the following colloquy occurred at numerous points throughout the deposition:
Q Okay. What is your understanding of the term "pitch"? MR. CONCIATORI: As he uses it? THE WITNESS: As I use it? BY MS. FLAHERTY: Q Yes. Your understanding of the term "pitch," yes. A A pitch is going in and sitting down and pitching a movie to an executive, a producer. Q When you say, "pitch," can you define that to me? MR. MULDOON: I think he just did. BY MS. FLAHERTY: Q I said, please, define "pitch," and you said you pitch. What is a "pitch"? A A pitch is — MR. CONCIATORI: Again, as he uses the term and understands it. MS. FLAHERTY: Certainly. THE WITNESS: As I know and understand the term. BY MS. FLAHERTY: Q Yeah. Ad how you do it. A All right. A pitch is giving a — not very detailed, but a basic run of the movie that I want to write. Q Do you do it orally? A Orally. (Filardi Dep. at 52-53). Notwithstanding the static defense counsel generated, plaintiff asked for the definition of "pitch," and Filardi initially responded with an answer that used the term for which the definition was sought. In light of this deficiency, plaintiff was entitled to press for an answer that did not use the term, she did so, and ultimately got a response. Plaintiff's papers do not identify any relevant subject matters that she was unable to question Filardi about nor does she identify a single relevant question that counsel prevented Filardi from answering.In addition, a substantial portion of defense counsels' objections were made during questioning that had no relationship to the issues in this case. Although this conduct was inappropriate, it did not materially impeded the inquiry of relevant subjects. Finally, plaintiff does not explain why she did not call my chambers during the deposition to seek an Order to defense counsel to cease their obstructive behavior. The Filardi deposition commenced at 10:31 a.m., Pacific Time. Notwithstanding the time difference, there was substantial overlap between the hours during the deposition was conducted and the working day on the east coast and Ms. Flaherty had ample opportunity to call my chambers for a ruling. Inexplicably, she did not so.
Thus, although defendants' counsel repeatedly and improperly interrupted plaintiff's questioning of Filardi, I have not found any relevant and material questions that Filardi was prevented from answering. Overall, plaintiff has not shown that there was any discovery misconduct by defendants that materially impaired her ability to conduct discovery. An award of sanctions is therefore inappropriate.
In light of defense counsel's misconduct at the Filardi deposition, it is troubling that there is no sanction available to provide specific and general deterrence. See generally Rickles, Inc. v. Frances Denney Corp., 508 F. Supp. 4, 8 (D. Mass. 1980). I hope that the fact that this opinion will, no doubt, be reported by the computerized legal research services and constitute a permanent record of the misconduct of Messrs. Kenneth E. Newman, Jeffrey A. Conciatori and Robert J. Muldoon will be sufficient to provide that deterrence.
IV. Conclusion
Accordingly, for all the foregoing reasons, the relief sought in plaintiff's letter dated August 14, 2006 and in her motion for a default judgment and other sanctions dated October 5, 2006 (Docket Item 166) is denied in all respects.
SO ORDERED