Opinion
Civil Action No. 98-3559 (NHP).
May 31, 2000.
Louis A. Zayas, Esq. CONOVER ZAYAS, LLP, Hackensack, N.J., Attorneys for Plaintiff.
John J. Shahdanian, II, Esq., CHASAN, LEYNER, BARISO LAMPARELL, Secaucus, N.J., Attorneys for Defendant City of Paterson.
Patrick Caserta, Esq., KESSLER CASERTA, Paterson, N.J., Attorneys for Defendant DeLorenzo.
Kevin Sisco, Esq., LAW OFFICES OF RAYMOND REDDIN, West Paterson, N.J., Attorneys for Defendant Cheff.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on the appeal by plaintiff Elias G. Haddad from an Order dated March 20, 2000 issued by Magistrate Judge Ronald J. Hedges. This matter was decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated herein, the decisions made by Judge Hedges as set forth in the Order dated March 20, 2000 are AFFIRMED IN PART AND REVERSED IN PART.
DISCUSSION
Plaintiff appeals from an Order dated March 20, 2000 issued by Magistrate Judge Ronald J. Hedges. Specifically, plaintiff appeals two decisions by Judge Hedges which: (1) provided that the depositions of Mayor Martin Barnes and City Councilwoman Vera Ames will be taken via 50 written questions per deponent; and (2) denied plaintiff's second request for interrogatories and documents.The legal standard of review applicable to a determination made by a magistrate judge depends upon whether the issue to be addressed is dispositive or non-dispositive of the case. Pursuant to the Federal Magistrate Act of 1979, a United States Magistrate Judge may "hear and determine any [non-dispositive] pretrial matter pending before the court." 28 U.S.C. § 636(b)(1)(A) (West 2000). If a magistrate judge directly rules on a non-dispositive pretrial matter and issues an order, a United States District Court Judge may reconsider the order only where it has been shown that the magistrate judge's order is "clearly erroneous or contrary to law." See id.
The Federal Magistrate Act was enacted in 1968 and was referred to simply as the "Federal Magistrates Act." Since 1968, the Act has been amended several times "to expand the scope of the duties of magistrate judges in order to alleviate the increased burdens on district courts." Cooper Hospital/ University Medical Center v. Sullivan, et al . , 183 F.R.D. 119, 126 (D.N.J. 1998) (referencing H.R. Rep. No. 94-1609 (1976), reprinted in 1976 U.S.C.C.A.N. 6162)). In 1979, Congress amended the Act and provided that the short title to the Act be referred to as the "Federal Magistrate Act of 1979."
The standard of review governing non-dispositive pretrial matters provided in § 636(B)(1)(A) is mirrored in the Federal Rules of Civil Procedure: "The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). The "clearly erroneous or contrary to law" standard governing non-dispositive matters also has been adopted in this jurisdiction and is provided in Local Civil Rule 72.1(c)(1)(A): "A Judge shall consider the appeal . . . and set aside any portion of the Magistrate Judge's order found to be clearly erroneous or contrary to law."
By way of comparison, a magistrate judge may also "conduct hearings, including evidentiary hearings," into dispositive matters. See 28 U.S.C. § 636(b)(1)(B) (West 2000). However, since a magistrate judge cannot directly rule on a dispositive issue, he must submit to a district judge "proposed findings of fact and recommendations" for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). If, within ten days after being served with a copy of the magistrate judge's proposed findings of fact and recommendations, a party files written objections, a district court judge must make a de novo determination of those portions of the report and recommendation to which objection is made. See id.
Matters concerning pretrial discovery matters are invariably treated as non-dispositive pretrial motions by courts in this jurisdiction and elsewhere. See, e.g., Williams v. American Cyanamid, 164 F.R.D. 615, 617 (D.N.J. 1996); Doe v. Marsh, et al., 899 F. Supp. 933, 934 (N.D.N.Y. 1995); United States v. Premises Known as 281 Syosset Woodbury Road, 862 F. Supp. 847, 851 (E.D.N.Y. 1994), aff'd, 71 F.3d 1067 (2d Cir. 1995); Schwartz v. Marketing Publishing Company, 153 F.R.D. 16, 22 (D.Conn. 1994). Accordingly, this Court may only set aside the Magistrate Judge's Order if it is found to be clearly erroneous or contrary to law.
"A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). See also United States v. W.R. Grace Co.-Conn., 185 F.R.D. 184, 188 (D.N.J. 1999); Cardona v. General Motors Corporation, et al., 942 F. Supp. 968, 971 (D.N.J. 1996), motion to certify appeal denied, 939 F. Supp. 351 (D.N.J. 1996); South Seas Catamaran, Inc. v. Motor Vessel "Leeway", 120 F.R.D. 17, 21 (D.N.J. 1988), aff'd, 993 F.2d 878 (3d Cir. 1993). A district judge's simple disagreement with the magistrate judge's findings is insufficient to meet the clearly erroneous standard of review. See Toth v. Alice Pearl, Inc., et al, 158 F.R.D. 47, 50 (D.N.J. 1994) (citingAnderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (opining that, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.") (citations omitted)).
Recognizing that the Magistrate Judge's determination is entitled to great deference, this Court must be satisfied that the Order is clearly erroneous or contrary to law. See Cooper Hospital/University Medical Center v. Sullivan, et al., 183 F.R.D. 119, 127 (D.N.J. 1998); Kresefsky v. Panasonic Communications and Systems Co., et al., 169 F.R.D. 54, 64 (D.N.J. 1996); Exxon Corporation v. Halcon Shipping Co., Ltd., et al., 156 F.R.D. 589, 591 (D.N.J. 1994); Harter v. GAF Corporation, 150 F.R.D. 502, 508 (D.N.J. 1993); Miller v. Beneficial Management Corporation, 844 F. Supp. 990, 997 (D.N.J. 1993).
I. Depositions
As aforementioned, Judge Hedges ordered what is known as a "deposition on written questions" pursuant to Federal Rule of Civil Procedure 31 as opposed to a typical oral deposition. More specifically, Judge Hedges determined that plaintiff could take the depositions of Mayor Martin Barnes and City Councilwoman Vera Ames only by serving 50 written questions upon each deponent. It was also ordered that defendants have a period of two weeks to answer plaintiff's deposition questions.
Federal Rule of Civil Procedure 30 provides that a party may take the deposition testimony of any person without leave of court except as provided in Rule 30(a)(2) which provides:
(2) A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without the written stipulation of the parties[:]
(A) a proposed deposition would result in more than ten depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by third-party defendants;
(B) the person to be examined already has been deposed in the case; or
(C) a party seeks to take a deposition before the time specified in Rule 26(d) unless the notice contains a certification with supporting facts, that the person examined is expected to leave the United States and be unavailable for examination in this country unless deposed before that time.
Fed.R.Civ.P. 30(a)(2) (West 2000).
Federal Rule of Civil Procedure 26(b)(2) sets forth the limitations upon the general principle that parties may obtain discovery regarding any matter which is not privileged so long as it is relevant to the subject matter of the case:
(2) Limitations. By order or by local rule, the court may alter the limits in these rules on the number of depositions and interrogatories and may also limit the length of depositions under Rule 30 and the number of requests under Rule 36. The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court of it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c).
Fed.R.Civ.P. 26(b)(2) (West 2000).
Federal Rule of Civil Procedure 31 explains, in detail, the procedure for taking depositions by written questions. See Fed.R.Civ.P. 31 (West 2000).
The subject dispute first involves an issue regarding the noticing of depositions. Specifically, plaintiff sought to take the depositions of both the Mayor and City Councilwoman of the City of Paterson. Defendant City of Paterson objected. The Court cannot ascertain from the record Judge Hedges's rationale for his decisions to limit the deposition testimony of both officials, i.e., those set forth in F.R.C.P. 26(b)(2), inasmuch as the issues were discussed with counsel during a telephone conference and Judge Hedges did not issue a Letter Opinion. Nonetheless, it is clear from the Order issued March 20, 2000 that Judge Hedges determined that plaintiff could only take the depositions of Mayor Martin Barnes and City Councilwoman Vera Ames by serving 50 written questions upon each deponent.
By way of background, plaintiff is alleging various constitutional violations pursuant to 42 U.S.C. § 1983 as well as state tort causes of action against the City of Paterson, the City of Paterson Police Department, Gerald Delorenzo and Michael Cheff. On appeal, plaintiff argues that Judge Hedges's decision is clearly erroneous because, as public officials of the City of Paterson, both Barnes and Ames have firsthand knowledge of the "widespread pattern of police brutality," specifically with regard to a prior incident involving one of the police officers named as a defendant in this case. In light of the fact that plaintiff is seeking to establish, in part, municipal liability, plaintiff argues that the depositions of Mayor Barnes and City Councilwoman Ames are necessary because they are "policymakers" for the City of Paterson with relevant knowledge.
The City of Paterson objects based on its contention that the case law indicates that the practice of calling high level officials for depositions is discouraged. The City of Paterson also objects to the depositions based on its contention that plaintiff cannot meet the "exceptional circumstances" standard arguably applied to the noticing of such depositions.
A review of the case law, taken from a national perspective, reveals that courts approach the issue of deposing high level officials, whether government officials or otherwise, quite independently of other courts outside of their circuit. For example, there is case law which suggests that high ranking government officials enjoy a limited immunity from being deposed in a matter about which they have no personal involvement or knowledge, thereby allowing them to continue with the important tasks of their administrations. See e.g., Warzon v. Drew, 155 F.R.D. 183, 185 (E.D.Wis. 1994). See also In re United States, 985 F.2d 510, 512 (11th Cir. 1993) (per curiam), cert. denied, 510 U.S. 989 (1993). Other circuits have held that "`exceptional circumstances must exist before the involuntary depositions of high agency officials are permitted.'" In re Federal Deposit Insurance Corporation, 58 F.3d 1055, 1060 (5th Cir. 1995) (quoting In re Office of Inspector General, 933 F.2d 276, 278 (5th Cir. 1991) (per curiam) (citing EEOC v. K-Mart, 694 F.2d 1055, 1067-68 (6th Cir. 1982))). In particular, the Seventh Circuit Court of Appeals has held that public officials "should not have to spend their time giving depositions in cases arising out of the performance of their official duties unless there is some reasons to believe that the deposition will produce or lead to admissible evidence." Olivieri v. Rodriguez, 122 F.3d 406, 409-10 (7th Cir. 1997), cert. denied, 522 U.S. 1110 (1998). See also Stagman v. Ryan, 176 F.3d 986, 994-95 (7th Cir. 1999),cert. denied, ___ U.S. ___, 120 S.Ct. 446 (1999). The Second Circuit has suggested that an advocate's "mere speculation" that a high level official can provide certain relevant information is insufficient; in other words, a party must affirmatively demonstrate that the deposition is necessary in order to obtain relevant information and that it would not "significantly interfere" with the ability of the high level official to attend to his responsibilities. See Logan v. Bennington, 72 F.3d 1017, 1027 (2d Cir. 1996), cert. denied, 519 U.S. 822 (1996). See also Martin v. Valley National Bank of Arizona, 140 F.R.D. 291, 314 (S.D.N.Y. 1991).
In Martin, the plaintiff, the Secretary of the United States Department of Labor, instituted an action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1104 (a)(1)(A) (B), 1106(a)(1)(A),(B), (D) alleging that defendant Valley National Bank breached its fiduciary obligations as trustee of an employee stock option plan by agreeing on behalf of that plan to its participation in a leveraged buyout of the plan's sponsor. See Martin v. Valley National Bank of Arizona, 140 F.R.D. 291, 314 (S.D.N.Y. 1991). The principal contentions by the plaintiff in that case were that Valley National Bank and the other named defendants arranged for and consented to a transaction whereby the employee stock option plan paid more consideration for its shares in the purchased entity and that Valley National Bank failed to exercise independent judgment in assessing the proposal. See id.
Among other things, the plaintiff in Martin sought a protective order precluding certain "high-level policy making officials" in the Department of Labor from being deposed. See Martin, 140 F.R.D. at 314. Plaintiff supported this position by arguing that it was unlikely that the officials would have any relevant information. See id. at 314. Plaintiff also argued that, assuming the officials had any information, that information was available from other officials in the Department of Labor. See id.
Disregarding the notion that it is presumed that high level officials could not be deposed, the Martin Court held that one of the three so-called "high-level policy making officials" could be deposed because defendants demonstrated that the official was involved in a decision related to an investigation of the subject transaction and "perhaps" in the decision about whether or not the employee stock option plan should participate in the leveraged buyout. See id. The Court also reasoned that:
he may be able to contradict or corroborate key testimony of prior witnesses as to the status of the Department's knowledge and intentions at the time of the closing. He may also be in a position to testify concerning the policy and practice of the Department at that time in dealing with inquiries from [the employee stock option plan] representatives prior to the closing of such transactions. All of these are relevant and non-privileged topics.See id. at 315.
Essentially, the deposition was allowed because that particular individual either possessed or was likely to possess certain information deemed necessary by the court to the development of a party's case which otherwise could not be obtained.
Similarly to the plaintiff in Martin who was seeking a protective order to preclude certain "high-level policy making officials" from being deposed, the City of Paterson argued before Judge Hedges, and continues to argue, that the depositions of both the Mayor and City Councilwoman cannot be taken simply because they are "high level officials."
What is particularly troubling about the record in this case thus far, however, is that the record is devoid of any assertion by Mayor Barnes or Councilwoman Ames that they have no knowledge concerning the subject matters. For example, the City of Paterson has not proffered a sworn affidavit by either the Mayor or Councilwoman that they lack knowledge of the issues which plaintiff has raised in his Complaint. Simply stating that the high level officials cannot be bothered due to their status, without more, is insufficient. Finally, contrary to the City of Paterson's contention, the Third Circuit has not adopted the "exceptional circumstances" standard with respect to deposing a high ranking official in any type of civil action.
Instead, in his Certification of Counsel submitted in opposition to plaintiff's appeal from Judge Hedges's Order dated March 20, 2000, counsel for the City of Paterson has attached as "Exhibit A" a letter dated February 28, 2000 wherein he plainly states that: "Neither Mayor Barnes nor Councilwoman Ames have knowledge relevant to plaintiff's allegations and accordingly, their depositions are a waste of legal and municipal resources." Quite simply, this assertion is insufficient.
The Court finds that there is enough evidence in the record to support a finding that the Mayor and the Councilwoman are in a position to possess certain information concerning the policies, practices and/or customs of the City of Paterson vis-a-vis the Police Department. Based upon the entire record, however, the Court concludes that Judge Hedges's decision to limit the deposition of both the Mayor and Councilwoman to 50 written questions was not entirely clearly erroneous. Nonetheless, in the interest of fairness, the Court will modify Judge Hedges's decision, in part, to allow plaintiff to make an appropriate application for oral depositions to the Court if it should develop, as a result of the answers to the written deposition questions, that the Mayor and/or City Councilwoman has personal knowledge of relevant information that should be explored in the context of an oral deposition. See e.g., Mulvey v. Chrysler Corporation, et al., 106 F.R.D. 364, 366 (D.R.I. 1985). See also Colonial Capital Company v. General Motors Corporation, 29 F.R.D. 514, 518 (D.Conn. 1961).
II. Interrogatories
In his March 20, 2000 Order, Judge Hedges also denied plaintiff's second request for interrogatories and documents relating to post-event incidents of police brutality. Again, the Court cannot ascertain from the record Judge Hedges's rationale for his decisions to deny plaintiff's second request for interrogatories inasmuch as the issues were discussed with counsel during a telephone conference and Judge Hedges did not issue a Letter Opinion.
Post-event evidence of police misconduct is relevant to show unconstitutional custom and usage. See Beck v. City of Pittsburgh, 89 F.3d 966, 973 (3d Cir. 1996), cert. denied, 519 U.S. 1151 (1997). The Third Circuit reasoned that post-event incidents "may have evidentiary value for a jury's consideration whether the City and policymakers had a pattern of tacitly approving the use of excessive force." Beck, 89 F.3d at 972.
Although the City of Paterson acknowledges that post-event evidence has been deemed relevant in § 1983 cases, it contends that the Beck decision is limited to situations involving the same actors. Contrary to the City of Paterson's contention, however, there is nothing in the context of the Beck opinion to suggest that the Third Circuit Court of Appeals intended such a limitation. The Court also finds it noteworthy that other courts which have interpreted the Beck decision have not limited the Circuit Court's holding in such a manner. See e.g., Kurilla v. Callahan, et al., 68 F. Supp.2d 556, 568 (M.D.Pa. 1999); Torres v. Kuzniasz, et al., 936 F. Supp. 1201, 1206 (D.N.J. 1996). Therefore, Judge Hedges's decision with respect to plaintiff's request for interrogatories and documents relating to post-event incidents of police brutality is clearly erroneous.
CONCLUSION
For the foregoing reasons, the decisions made by Judge Hedges as set forth in the Order dated March 20, 2000 are AFFIRMED IN PART AND REVERSED IN PART.
An appropriate Order accompanies this Letter Opinion.